;  a  CO.  INC. 

SIEW 

BOOKS 
JSED 

MN   STREET 
ALO.    N.  Y. 


r     , 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A    MANUAL 


OF 


CRIMINAL  LAW 


AS    ESTABLISHED    IN    THE 


State  of  AIaryland. 


B  Y 

LEAVTS    HOCHHEIMER 

OF    THE    HAI.TIMORK    IIAK. 


H  A  I.   r  I  M  O  R  E  : 

HAROLD    B  .    S  C  R I M  G  E  R 

Law  Bookseller  and  Publisher, 

126  E.  Fayette  street. 

1889. 


COPYKK^HTEI^    1889, 

rsv 
HAROLD     B.    SCRI.MGEK. 


PRESS    OF 

WM.    K.    BOYLK    &    SON, 

BALTIMORE. 


V«     •       -!.*.'         ' 


PREFACE. 


TiTE  primary  design  of  tlie  tbllowiug  pages  is,  to  present, 
in  a  succinct  and  systematic  mode,  the  common-law  i)rin- 
ciples  and  statutory  provisions  constituting  tlie  criminal 
law  as  established  in  Maryland.  It  has,  however,  been 
deemed  expedient,  in  various  portions  of  the  work,  to  sup- 
jdemeut  the  statements  of  law  drawn  from  the  sources  re- 
ferred to  by  references  to  and  citations  of  well-settled 
principles  and  established  doctrines  found  in  the  works  of 
standard  text-writers,  well-considered  decisions  in  other 
courts  than  our  own  and  instructive  discussions  in  leading 
law  periodicals.  To  have  given  the  whole  body  of  the 
statute  law  would  have  swelled  the  work  to  such  undesir- 
able proportions,  that  it  was  deemed  well  to  give  the  full 
text  of  only  such  statutory  provisions,  as,  it  is  believed, 
will  be  found  most  useful  in  criminal  trials  and  references 
to  the  others.  It  is  earnestly  hoped  by  the  author,  that 
he  has  succeeded  in  thus  furnishing  a  useful  guide  and 
help  to  practitioners  and  others  interested  in  the  adminis- 
tration and  study  of  the  criminal  law  in  this  State. 

LEWIS  IIOCIIHELAIKK. 

Baltimore,  February  15th,  1889. 


7&ta£4 


TAISLK   OK  CONTENTS. 


CHAPTER  I. 

Crime  and  its  Divisions. 

PAGE. 

§     1.  Definition 1 

§     2.  What  l*i()eoo(liiif>s  are  Classed  as  Criminal 1-2 

§     3.  l*()li(;e  Powers  of  Munieipal  C()r|)oratious 3 

§     4.   Classification  of  Crimes — Treason 3-4 

§     5.  Same  Subject — Felony 4 

§     C.  Same  Subject — Misdemeanor 4 

§     7.  Infamous  Crimes 4-5 

§     8.  Attemi)ts 5 

§     9.  Degrees  of  Particii)ation ."> 

§  10.  Same  Subject — Principal  and  Accessory 5-0 

§  11.  Keceiving 0-7 

§  12.  Compounding" 7-8 

§  ^:\.   Misjuision 8 

§  14.   Merger 8-0 


CHAPTER  II. 

Criminal  Capapity  and  Responsibility. 

§  15.  Corporations 10 

§  IG.  Infants 10-11 

§  17.  Coverture 11-13 

§  18.  The  Doctrine  of  Evil  Intent 13-14 

§  10.  Ignorance  of  Law 14 

§  20.  Ignorance  of  Fact 14-18 

§  21.  Mental  Incapacity 18-20 

§  22.  Same  Subject— floral  Insanity 20-21 

§  23.  Drunkenness 21-22 


VI  CONTENTS. 

CHAPTEK  III. 

Constitutional  Guakantees. 

PAGE. 

§  24.  Scope  of  Cbaptor 23 

§  25.  Coiistniction  CoiKstitiition — Geiioial  Rule 28-24 

§  26.  Criminal  Prosecutions — FiuulanKnital  Pigbts 24 

§  27.  Summary  Proceedings.. .24-26 

§  28.  "Confronted  with  Witnesses" 26 

§  29.  Compelling  Accused  to  Give  Evidence 26-27 

§  30.  Change  of  Name 28 

§  31.  Imprisonment  for  Debt 28-29 

§  32.  Jury  Judges  of  Law 29-31 

§  33.   "Cruel  or  Unusual  Punishment" 31-32 

§  34.  Internal  Police. — Liquor  Selling 32-33 

§  35.  Delegation  of  Powers 33 

§  36.  Same  Subject — Local  Option  Laws .33-34 

§  37.  Tobacco  lnsi)ections — Powers  of  State  Legisla- 
ture  34-35 

§  .38.  Comnjou  Eight  of  Fishery 35 

§  39.  Non-resident  Traders 36-37 

§  40.  Equal  Rights. — Negro  Apprentices. — Bastardy 

Laws. 37 

§  41.  Ex  Post  Facto  Laws 37 


CHAPTER  IV. 

Statutory  Construction. 

§  42.  Statutes  Relating  to  Crime  and  Criminal  Pro- 
cedure    38 

§  43.  General  Rules  of  Construction 38-39 

§  44.  General  Terms  Following  Specific  Terms 39 

§  45.  Legislative   Grants    of   Authority. — Municipal 

Ordinances  and  B3 -Laws 39-40 

§  46.  Repeal  of  Statutes 40-41 


CONTENTS.  VII 

CHAPTER  V. 

Preliminary  Puoceedings. 

PAGE. 

§  47.  The  Arrest. — Conservators  of  the  Peace 42-43 

§  48.  Causes  and  ^Manner  of  the  Arrest 4;J-44 

§  4!).  Pursuit  of  Offenders. — r>reakin<i:  Doors 44-4") 

§  50.  Hue  and  Cry 45 

§  51.  Time  of  Arrest 45 

§  52.  Exemi)tions  from  Arrest 45-40 

§  53.  The  Preliminary  Hearinj^- 40-47 

§  54.  Discluir<ie  of  Prisoner 47 

§  55.  Bail 4S-.J0 

§  50.  Statutory  Provisions  in  Relation  to  Bail 50-52 

§  57.  Recognizance  of  Witnesses .52-53 

§  58.  Transmitting-  Case  to  Court 53 

§  59.  Referring  Case  to  Grand  Jury — Summary  Pro-   , 

ceeding  in  Baltimore 53 

§  00.  Grand  Jury.— Presentment.  —  Indictment. — In- 
formation     53-50 


CHAPTER  VI. 

Special  ProceedinGtS. 

§  01.  Scope  of  (/iuii)ter 57 

§  02.   Summnry  Proceedings — Definition 57 

§  03.  Drunkenness  and  Disorderly  Conduct 57-5S 

§  04.  Jurisdiction    of    Police    Justices   in    Baltinuire 

City 58-59 

§  05.  Summary  Jurisdiction  of  Justices  of  the  Peace 

in  Certain  Counties 50-01 

§  00.  Tramps 01-02 

§  07.  Vagrant  Laws  for  Baltimore  City 02 

§  08.  Certiorari  When  Justices  of  the  Peace  exceed- 
ing their  Jurisdiction 02-03 

§  09.  Proceedings  in  Relation  to  Minors — Their  Xa- 

ture — Constitutionality  of  Statutes 03-(>4 

§  70.   Commitment    of  Mendicant   and  Vagrant  Chil- 
dren      04-05 

§  71.  Commitment  of  Vagrant  Childreu  in  Baltimore,  0.5-00 


Viii  CONTENTS. 

VAGE. 

§  72.  Destitute  and  Suffering- Minors— ConiniitmeDt... 66-67 

§  73.  Juvenile  Institutions 67-68 

§  74.  Search  Warrants , 6S-70 

§  75.  Peace  Warrants 70-71 


CHAPTEE  VII. 

The  Indictment. 

§  76.  Prosecution  By 72 

§  77.  Formal  Allegations 72-74 

§  78.  Certainty  of  Allegation 75 

§  79.  Names  ot-  Third  Persons 75 

§  80.  Allegation  of  Circumstances  Constituting  Ille- 
gality  75-76 

§  81.  Time  and  Place 76-77 

§  82.  Matters  Unknown  to  Grand  Jury 77 

§  8.3.  Technical  Words 77-78 

§  84.  Suri)lusage 78 

§  85.  Indictments  upon  Statutes 78-79 

§  86.  The  Conclusion 79 

§  87.  Joinder  of  Counts  and  Election 79-80 

§  88.  Statement  of  Ownership  or  Possession 80 

§  89.  A raendment 80-85 

§  90.  Specific  Offenses 85 


CHAPTEE  VIII. 

The  Trial  and  Its  Incidents. 

§  91.  Jurisdiction 86-87 

§  92.  Proceedings  between  Indictment  and  Trial — 87-89 

§  93.  Change  of  Venue 89-93 

§  94.  Mode  of  Trial. — Traverse  before  Court 93-94 

§  95.  Same  Subject — Traverse  before  Jury 94-97 

§  96.  Oath  of  Jurors 97-98 

§  97.  Other  Matters  in  Eelation  to  Jury 98 

§  98.  The  Trial— When  Said  to  Commence 98 

§  99.  Prayers  and  Instructions   98-99 

§  100.  Argument  before  the  Jury 99 


CONTENTS.  IX 

CHAPTER  IX. 

The  Evidence. 


PAGE. 


§  101.  Competency  of  Witnesses 1()0-10L> 

§  lOL*.  Number  of  Witne.sses 102 

§  103.  Accompliecs lOL'-lO.'j 

§  101.   Admissions  and  Confessions 10;;-10r> 

§  105.  ])eei;u:it ions— lies  Gestae 10o-10(! 

§  lOG.  Dying  Declarations KXJ 

§  107.   Expert  Testimony 100-107 

§  108.  Almanacs 107 

§  100.  Kelevancy 107-100 

§  110.  Alle-^ations  and  Proof. — Snrpliisage 10I> 

§  111.  Proof  of  Time.— Statute  of  Limitations 100-110 

§  112.  Sutliciency  of  Evidence 1 10-111 

i^  113.  Prosecution  for  Second  Oflense Ill 


CHAPTER  X. 

The  Verdict  and  Subsequent  Proceedings. 

§  111.  The  Verdict.— General  Doctrine 112 

§  ll.~>.  Verdicts  in  Cases  of  Homicide 112-113 

§  11(5.  Verdicts  in  Second-Offense  Cases 113 

§  117.  Rendition  of  the  Verdict 113-114 

§  118.  Verdicts  Where  Defense  is  Insanity 114-115 

§  110.   Effect  of  Verdict 115-110 

§  120.  Mistrial 110 

§  121.   Arrest  of  Judgment llG-117 

§  122.  Judgment.— Sentence 117-118 

§  123.  Same  Subject— Statutory  Provisions 118-120 

§  124.   Convict  Infants 120-122 

§  125.  Sentence  to  .Maryland  House  of  Correction  .  .122-123 


CHAPTER  XI. 

Fines,  Costs  and  Miscellaneous  Matters. 

§  126.   Fines — Mode  of  Recovering 121-125 

§  127.  Same  Subject— To  Wliom  Paid 125 


X  CONTENTS. 

PAGE. 

§  128.  Same  Subject — Discharge  from  Jail 125 

§  129.  Costs. 125-126 

§  130.  Commitmeuts 126 

§  131.   Custody  of  Prisoners 126-127 

§  132.   Sret.—^'olle  Prosequi :  .127-128 

§  133.  Pardou  and  otlier  Matters  Pertaining  to  (3CQce 

of  Governor 128-129 


CHAPTER  XII. 

Writs  of  Error  and  Appeals. 

§  134.  Writs  of  Error 130-131 

§  135.  Xo  Formal  Writs  of  Error 131 

§  136.  Appeals  upon  Prosecutions  for  Fines  or  Penal- 
ties   131 

§  137.  Appeals  from  Eulings  at  the  Trial. 131  133 

§  138.  Reversal  anil  its  Consequences 133-134 


§ 

139. 

§ 

140. 

§ 

141. 

§ 

142. 

§ 

143. 

§ 

144. 

§ 

145. 

§ 

146. 

§ 

147. 

§ 

148. 

§ 

149. 

§ 

150. 

§ 

151. 

§ 

152. 

§ 

153. 

§ 

154. 

§ 

155. 

§ 

156. 

CHAPTER  XIII. 

Specific  Offenses. 

Abduction 135-136 

Abortion , 136-137 

Adultery 137-138 

Arson  and  Burning 138-139 

Assault  and  Battery 139-141 

Bastardy 141-143 

Bigamy 143-144 

Blasphemy  and  Profanity 144 

Boundaries 144 

Briber^'  and  Impeding  Justice 144 

Burglary  and  Kindred  Offenses 144-146 

Concealed  Weapons 146-147 

Conspiracy 147-148 

Counterfeiting  and  Forgery 148 

Cruelty  to  Animals 148 

Defaulters 149 

Destroying  Property  Maliciously 149 

Disturbance  of  Public  Peace 149 


CONTENTS.  XI 

I'AGE. 

§  157.  Drmikpiiiiess  aud  Disorderly  CoiHluct MK-MO 

§  ins.    Dueling- I.")() 


CPIAPTKK  XIV. 

SPKCIFK"    Ol'I'ENt^ES-CoNTINrElJ. 

§  150.  Elections 151 

§  100.  Embezzlement 151-1.52 

§  lOl.   Es('a]>ing  fVom  Penitentiary 1,52 

§  102.   False  Pretenses 152 

§  103.  Female  Sitters 152 

§  164.   Female    Waiters 152 

§  105    Frand 153 

§  100.  Fugitive  Convicts 153 

§  107.  Funerals — Collection  of  Tolls  Irom 153 

§  108.  Gam  i  n g 15;;-154 

§  109.   Graveyard  Desecration 154 

^  170.  Gunning 154 

§  171.  Health 1.54-155 

§  172.   Heating  Steam  Passenger  Cars 15,")-150 

§  173.   Importing  Convicts 150 

§  174.  Incest 150 

§  175.   Kidnapping. 156 

§  17().   Larceny 150-1.'59 

§  177.   Letters — Wrongfully   Oijening 15!) 

§  178.   Libel 150-100 

§  170.   License  Laws lOO 

§  180.   Lotteries ICl 


CHAPTEK  XV. 

SPEriFif  Offenses,  Continued. 

§  181.  Maiming 102 

§  182.   IMalfeasanee  in   OHice 102-1(53 

§  183.   :\hnislaugliter 1  (13-104 

§  184.  ^larrying  Tidawfully 1(;4 

§  185.  Mineral  Waters,  Porter  and  Other I(i4 

§  180.  Minors — Care  and  Protection  of. 104-105 


Xll  CONTENTS. 

PAGE. 

4  187.  Murder 1615-108 

§  188.  Negroes— Fornication   Witli 108 

§  180.  Nuisance 108-109 

^  VM).  Obscene  Publications 100 

§  101.  Opium  Joints 100-170 

§  102.   Oysters 170 

§  193.  Perjury 170-171 

^  104.  Poison— Attempting  to 171-172 

§  105.  Kaihoads — Obstructing 172 

§  100.  Kape 172-173 

§  107.  Receiving  Stolen  Goods,  Money  or  Securities. .  .173 

§  108.  Keligious  Meetings 174 

§  100.  liivers 174 

§  200.  Kobbery 174-175 

§  201.  Rogues  and  Vagabonds 175 

§  202.  Sabbatb-Breaking 175-170 

§  203.  Sodomy 176-177 

§  204.  Telegraphs.. 177 

§  205.  Theatrical  P^xhibitions 177-178 

§  200.  Thieves  and  Pickpockets 178 

§  207.  Toy  Pistols 178 

§  208.  Traction  Engines 178 

§  200.   Water  Supply— Pollution  of  Sources  of 178-170 


A     AlAXUAL     OR 


CRIMINAL     LAW, 

AS  ESTABLISHED   IN   THE 

S  T  A  T  ]•:     ( )  V     M  A  R  Y  L  A  N  D . 


CHAPTEK  I. 

Ckime  and  its  Divisions. 

§  1. — Definition. — Criiiiiiial  law  treats  of  tliose  cases 
wliicli  the  j;()voiiiiiient  iioticos  as  injurious  to  the  i»ul)lic, 
and  ])nnishes,  in  wliat  is  called  a  ciiniinal  i)ioceeding,,  iu 
its  own  name/  A  crime  may  be  delined  to  be  a  i)iiblic 
wrong,  or  one  that  atlects,  in  its  immediate  oi)eration  or 
its  consequences,  the  interests,  peace,  dignity  or  security 
of  the  public.  Hence,  it  is  required  by  the  Constitutiou 
of  this  State,  that  all  indictments  shall  conclude,  "against 
the  i)(';ic(\  government  and  dignity  of  tlie  State. "- 

§  1'. — What  Proceedings  are  Classed  as  CriminaL — 
The  line  of  distinction  between  the  criminal  and  civil  de- 
pjirtmentsof  the  law  is  one  not  at  all  points  clearly  defined, 
and  there  is  a  contlict  of  rulings  in  this  regard.^  (Ques- 
tions bearing  on  this  distinction  have  arisen  in  this  State 
on  a  number  of  occasions. 

A  i»roceeding  by  indictment  against  the  father  of  an 
illegitimate  child,  nnder  the  bastardy  acts,*  in  which,  if 
found  guilty,  the  court  adjudges  him  to  give  security  to 
indemnify  the  county  from  any  charges  that  may  accrue 


'1  Bish.  Cr.  L.  ?.  32. 
^  Const,  art.  4,  sec.  13. 
"1  Bish.  Cr.  L.  U  32,33. 
^Code,  art.  12. 
1 


2  CRIMINAL   LAW. 

for  the  maintenance  of  the  child,  and,  if  he  neglect  or 
refuse  to  comply,  to  stand  committed  until  he  shall  com])ly, 
is  a  criminal  proceeding".  It  is  so  treated  and  classed  by 
the  statute,  and  the  fact  that  the  design  of  the  law,  in  the 
punishment  inflicted,  is  to  indemnify  the  county  does  not 
at  all  change  the  character  of  the  proceeding.^ 

Proceedings  of  inquisition,  by  one  or  more  justices,  with 
an  award  of  restitution,  in  cases  of  forcible  entry  and  de- 
tainer, under  Stat.  8 II.  (),  cli.  9,  form  a  part  of  our  criminal, 
not  civil  jurisprudence." 

Actions  of  debt,  instituted  in  the  uanie  of  the  State  to 
recover  tines  imposed  for  misdemeanors,  are  held  to  be  but 
civil  actions  i7iter  X)artes.  "  Although  the  object  of  their 
institution  is  the  recovery  of  tines  and  penalties,  yet,  in  con- 
templation of  law,  they  are  as  much  regarded  as  civil 
actions  as  if,  instead  of  actions  of  debt,  they  had  been 
actions  for  money  had  and  received."'  It  was,  therefore,^ 
ruled,  that  a  constitutional  provision,  that  no  person  shall 
be  compelled,  in  any  criminal  case,  to  be  a  witness  against 
himself,  has  no  application  to  such  proceedings.^  Yet,  it 
has  been  further  held,  that,  as  the  debt  or  obligation  was 
imposed  by  way  of  punishment  for  crime,  the  proceeding, 
although  civil  in  form,  was  not  entirely  governed  by  rules 
applicable  to  civil  proceedings,  and  that  the  defendant 
might  be  imprisoned  for  non-payment  of  the  fine  without 
violating  the  constitutional  prohibition  of  imprisonment  for 
debt.-- 


'  Oldham  v.  State,  5  G.  90;  State  v.  Phelps,  9  Md.  21;  Bake  t;.  State, 
21  lb.  422 

*  Isaac  V.  Clarke,  9  G.  &  J.  107. 

•''Day  V.  State,  7  G.  321. 

■•Day  V.  State,  supra. 

'"  State  V.  Mace,  5  Md.  337. 

So  in  England,  upon  an  indictment  for  a  nuisance  for  obstructing 
the  navigation  of  a  river  in  connection  with  some  works  whicii  the 
defendant  carried  on  near  the  banks,  it  was  held,  that,  as  the  object 
of  the  indictment  is  not  to  punish  the  defendant,  but  really  to  pre- 
vent the  nuisance  from  being  continued,  the  evidence  that  would 
support  a  civil  action  would  be  sufficient  to  support  an  indictment. 
Reg.  V.  Stephens.  L.  R.  1  Q.  B.  702;  S.  C,  35  L.  J.  M.  C.  251;  S.  C, 
12  Jur.  N.  S.  961;  S.  C,  14  L.  T.  59.S:  S.  C,  14  W.  R.  859;  S.  C,  7 
B.  &  S.  710.     See  1  Bish.  Cr.  L.  ^  1076. 


CRIME    AND    ITS    DIVISIONS.  .> 

§  3. — Police  Powers  of  Municipal  Corporations. — Pro- 
ceediug-.s  to  punish  certain  classes  of  otteiiders  aj4ainst  the 
^ood  onlor  of  nituiicipal  towjisliips  are  likewise  to  ])e  dis- 
tiny:iiislicd  from  the  ordinary  classes  of  crinjinal  actions. 
"  It  would  be  next  to,  if  not  quite  impossible,  for  a  lajge 
city  like  Baltimore  to  preserve  order  within  its  limits,  pre- 
serve the  streets  free  from  interruption,  indeed  do  most  of 
the  thousand  things  necessary  to  be  done  to  carry  out  its 
various  and  indispensable  operations,  if  in  every  case  it  were 
anecessary  i)reliminary  that  tlie  olifeuder should  be  reguhirly 
prosecuted,  by  presentment,  indictment  and  trial.  Jt  has 
always  been  understood  that,  under  the  police  power,  per- 
sons disturbing  the  public  peace,  persons  guilty  of  a  nui- 
sance, or  obstructing  the  public  highways,  and  the  like 
offenses,  may  be  summarily  arrested  and  fined,  without  any 
infraction  of  that  part  of  the  Constitution  whicli  ajtportions 
the  administration  of  the  judicial  power,  strictly  as  such. 
The  punishment  is  for  an  offense  against  the  decency  and 
morals  of  the  municipality  and  does  not  wipe  out  all  respon- 
sibility for  the  offense  to  the  dignity  and  sovereig:uty  of 
the  State.''' 

§  4. — Classification  of  Crimes — Treason. — Crimes,  ac- 
cording to  their  degree  of  turpitude,  are  divided  into  trea- 
sons, felonies  and  misdemeanors.  These  divisions  are 
technical,  but  most  important.-  Treason,  the  most  heinous 
of  these  classes,  was  divided  into  petit  and  high  treason. 
But  now,  what  is  meant  by  treason  is  high  treason.  By  the 
ancient  cojnmon  law,  tlierewere  several  I'orms  of  petit  trea- 
son, which,  by  !'.">  ImIw.  Ill,  Stat.  5,  ch.  1*,  were  reduced  to 
three.  They  were  the  killing,  by  a  servant,  of  his  master; 
the  killing,  by  a  wife,  of  her  husband  ;  tiie  killing  of  a  pre- 
late by  an  ecclesiastic  owing-  obedience  to  him.  In  18l'8, 
these  petit  treasons  were  abolished  by  9  Geo.  IV,  ch.  .tl, 
§  2,  providing,  "that  every  offense  which,  before  the  com- 
mencement of  this  act,  would  ha^'e  amounted  to  petit 
treason,  shall   be  deemed   to  be   murder  only."^     In   this 


'  Shafer  v.  Mumina,  17  Md.  331.     See  Cooley  Const.  Liru.,  5  ed., 
242,  n.  1. 
M  Bish.  Cr.  L.  iJ  'Cm. 
'This  provisiou  is  continued  by  24  &  25  Vict,  c,  100,  i  8. 


4  CRIMINAL   LAW. 

State  it  Avas  provided  by  the  Act  of  1809,  ch.  138,  §  3, 
"  that  every  person  liable  to  be  prosecuted  for  petit  treason 
shall  ill  future  be  indicted,  i)ro(;eeded  against  and  ])unished 
as  is  directed  in  other  kinds  of  murder,  according  to  the 
degree."^  The  various  acts  constituting  treason  in  this 
State  are  defined  by  statute.^ 

§  5. — Same  Subject — Felony. — Felony,  the  next  in 
grade  of  turpitude,  is  defined  to  be  ajUy  offense  which,  by 
tbe  statutes  or  the  common  law,  is  ])unishable  with  death, 
or  to  M'hich  the  old  English  law  attaclied  total  forfeiture  of 
lands  or  goods,  or  both.^  Even  where  a  statute  is  not  ex- 
press, a  felony  may  be  created  by  necessary  implication  ; 
but  an  offense  can  never  be  made  a  felony  by  any  doubtful 
or  ambiguous  words.*  If,  by  the  terms  of  a  statute,  the 
infliction  of  the  i)unishment  of  death  is  discretionary,  the 
offense  is  not  felony  but  niisdenieaiior.-^ 

§  6. — Same  Subject — Misdemeanor. — All  crime  less 
than  felony  is  misdemeanor.  The  term  is  generally  used  in 
contradistinction  to  felony,  and  comprehends  all  indictable 
offenses  which  do  not  amount  to  felony.  The  term  may  be 
considered  as  and,  in  fact,  is  a  ;jenus,  which  contains  under 
it  a  great  number  of  .species  almost  as  various  in  their 
nature  as  human  actions.*^ 

§  7. — Infamous  Crimes. — Any  person  convicted  of  an 
infamous  crime,  unless  pardoned  by  the  Governor,  thereby 
becomes  disqualified  as  a  voter,"  and  such  a  conviction 
may  be  given  in  evidence  in  any  case  to  affect  the  credi- 
bility of  a  witness.*  It  is,  therefore,  deemed  well  to  note 
here  the  meaning  of  this  term.  An  infamous  crime  is  such 
a  crime  as  involved  moral  turpitude,  or  such  as  rendered 
the  offender  incompetent  as  a  witness  in  court,  ui)on  the 
theory  that  a  person  would  not  conunit  so  heinous  a  crime, 
unless  he  were  so  depraved  as  to  be  nnworthy  of  credit.    It 


'  Code,  art.  27,  sec.  215. 

nb.,  art.  27,  sees.  264-272. 

n  Bish.  Cr.  L.  'i  615. 

*  lb.,  'i  622. 

'Gibson  v.  State,  54  Md.  447,  453. 

''Stater.  Phelps,  9  Md.  21. 

■'Const,  art.  1,  sec.  2. 

*Code,  art.  35,  sec.  5. 


CRIME   AND   ITS   DIVISIONS.  5 

may,  in  ^ciu'ral,  be  said  to  iiicliidc  treason,  I'cloiiy  and  all 
otlenses  of  tlio  jjiadoof  niisdiMncanor  founded  in  fraud  and 
coniinji;:  within  the  f>eneial  notit)n  iA'  thQ  crimen  J'dlsi  of  tlio 
Konian  hiw."  Offenses  punishable  by  imprisonment  in  the 
Penitentiary  do  not  necessarily  come  within  this  class. - 

§  S. — Attempts. — An  act  towards  an  indictable  wrong, 
if  i>rom])ted  by  an  intent  to  do  it,  partakes  of  the  culpa- 
liility  of  the  doinj;.  Therefore  an  attempt,  or  an  intent  to 
do  a  particular  criminal  thing- with  an  act  tcjward  it,  falling; 
short  of  the  thing  intended,  is  classed  as  a  crime.  Every 
attempt  to  commit  any  crime,  whether  treason,  felony  or 
misdemeanor,  existing  either  at  the  common  law  or  under 
a  statute,  is  indictable  as  a  misdemeanor.  Any  iorm  of 
act  a])parehtly  adapted  for  the  puri)ose  is  sufficient,  but 
such,  act  should  be  sufficient,  both  in  magnitude  and  prox- 
imity to  the  fact  intended,  to  be  taken  cognixance  of  by  the 
law.^ 

§  1). — Degrees  of  Participation. — In  treason  as  well  as 
misdemeanor  all  participants  are  principals.  There  are 
misdemeanors  of  such  a  nature  and  so  small  in  turpitude 
that  even  a  person  ])resent  and  lending  the  supjiort  of  his 
will  to  the  commission  of  the  act  is,  nevertheless,  not  pun- 
ishable ;  ^  but  the  general  rule  is,  that  a  participation  in  the 
act  committed,  m  any  way,  makes  the  party  liable  as  prin- 
cipal, and  the  act,  though  only  commanded  to  be  done,  may 
be  charged  as  done  by  the  principal,  without  reference  to 
the  agent. ^ 

§  10. — Same  Subject — Principal  and  Accessory. — In 
felony  there  are  four  different  methotls  of  participation  in 
the  crime  which  make  the  i)articii»ant  a  felon.  He  may 
be  a  princii)al  of  the  first  degree,  a  principal  of  the  second 
degree,  an  accessory  before  the  fact,  or  an  accessory  after 
the  fact. 

rrinci[)al  of  the  lirst  degi"ee  is  one  who  docs  the  act, 
either  by  himself  directly  or  by  means  of  an  innocent  agent. 


'  1  (^reenl.  Ev.  U  ^72,  373;  Black  v.  State,  2  Md.  -376,  380:  State  r 
Bixler,  G2  lb.  3r)4. 

*  State  I'.  Bixler,  siijjnt. 

M  Bish.  Or.  L.  'i  728:  Lamb  r.  State,  6T  Md.  .124. 
^  1  Bish.  Cr.  L.  i(if(5r)7,  ()".S. 

*  Roddy  r.  Finuegaa,  43  :Md.  490:  Carroll  r.  State.  63  lb.  r,:,\. 


6  CRIMINAL   LAW. 

Persons  wlio  are  either  actually  or  constructively  present 
at  the  commissiou  of  an  offense,  aiding  and  abetting,  or 
counseling  and  procuring  the  same  to  be  done,  are  princi- 
pals in  the  second  degree. 

The  aider  and  abettor  must  participate  in  the  felony,  in 
the  sense  of  acting  in  concert  with  those  committing  it,  for, 
although  he  is  present,  yet,  if  he  does  not  participate,  but 
remains  passive,  he  is  not  an  abettor.  Moreover,  the  par- 
ticipation must  be  with  a  felonious  intent,  and  not  in  igno- 
rance of  the  nature  of  the  act.  The  distinction  between 
Ijrincipal  in  the  first  and  in  the  second  degree  is  a  purely 
technical  one  and  is  without  practical  effect.^ 

An  accessory  before  the  fact  is  one  who,  directly  or  indi- 
rectly, counsels,  procures  or  commands  any  person  to  com- 
mit a  crime  which  is  committed  in  consequence  of  such 
counseling,  procuring  or  commandment.  An  accessory 
before  the  fact  can  only  be  tried  jointly  with  the  principal, 
or  after  the  conviction  of  the  principal,  whose  acquittal 
also  acquits  him.- 

Every  one  is  an  accessory  after  the  fact  who,  knowing  the 
crime  to  have  been  committed  by  another,  receives,  com- 
forts or  assists  him,  in  order  to  enable  him  to  escape  from 
punishment,  or  rescues  him  from  an  arrest  for  crime,  or, 
having  him  in  custody  for  the  crime,  intentionally  and  vol- 
untarily suffers  him  to  escape,  or  opposes  his  apprehension. 
The  priuci])al  must  be  tried  and  convicted  first ;  but,  in 
various  circumstances,  an  accessor}^  after  the  fact  maj'  be 
held  guilty  of  a  substantive  crime,  for  which  he  may  be 
tried  and  convicted  independently  of  the  principal.  Thus, 
one  mode  of  helping  a  felon  is  to  rescue  him  from  lawful 
confinement,  either  before  or  after  his  conviction  ;  and  the 
rescuer  may  be  indicted  for  the  substantive  offense  of 
rescue  or  for  being  an  accessory  after  the  fact  in  the  other's 
felou}-,  at  the  election  of  the  prosecutor.^ 

§  11. — Receiving. — A  receiver  of  stolen  goods,  knowing 
them  to  be  stolen,  is  not  within  the  definition  of  an  acces- 
sory, because  he  renders  no  personal  help  to  the  thief.    At 


'  1  Bish.  Cr.  L.  ?  648. 
nb.,  \  667. 
nb.,  I  697. 


CRI"ME   AND   ITS   DIVISIONS.  i 

coinmoii  law  the  receiver  is  guilty  of  a  luisdeiiieanoi'.  In 
Kiiyland,  by  Stat.  .{  W.  ..^'  M.,  eh.  9,  §  4,  the  receiver  was 
made  an  accessory  after  the  fact  and,  hence,  could  not  be 
convicted,  unless  the  princijjal  felon  was.  If  the  i)rincipal 
felon  escaped  or  was  kept  out  of  the  way,  the  receiver  went 
unpunished.  Stat.  5  Anne,  ch.  31,  §  5,  confirmed  the 
former  statute,  and  §  0,  as  also  1  Anne,  Stat.  L',  ch.  !>, 
§  2,  provided,  that  where  the  princii)al  felon  could  not 
be  taken,  the  receiver  of  the  stolen  goods  might  be  prose- 
cuted separately  for  the  misdemeanor.  These  statutes 
extended  to  Maryland,  and,  in  addition!,  it  was  provided 
by  the  Act  of  180!),  ch.  13S,  §  6,'  that  the  receiver  may 
be  prosecuted  and  i)unished,  altliongh  the  i)iincipal  otteu<l('rs 
shall  not  have  been  convicted.  It  was  held  in  Wilhca'  Case" 
by  the  twelve  Judges,  that  a  receiver  of  stolen  goods  might 
be  prosecuted  and  convicted  of  the  ottense  as  a  misde- 
meanor, although  the  i)rincipal  felon  was  known,  unless  it 
appeared  from  the  finding  of  the  jury,  that  the  principal 
was  out  of  custody  by  collusion,  and  could  have  been  taken 
and  convicted  wIkmi  the  indictment  against  the  receiver 
was  I'ound,  and  this  ruling  has  been  followed  in  Maryland.' 

§  i'2. — Compounding. — Compounding  a  felony  is  the  act 
of  a  party  inunediately  aggrieved  who  agrees  with  a  thief 
or  other  felon  that  he  will  not  i)rosecute  him,  on  condition 
that  he  returns  to  him  the  stolen  goods,  or  who  takes  a 
11  reward  not  to  [>rosecute.'  Where  a  party  is  robbed,  and 
he  knows  the  felon  and  takes  his  goods  again  or  other 
amends,  upon  agreement  not  to  prosecute,  such  compound- 
ing was  an(;iently  called  the/t-hotr,  and  a  party  so  com- 
pounding the  felony  was  considered  an  accessory  after  the 
fact,'  contrary  to  the  later  and  present  law.** 

The  otfense  ordinarily  ai)plies  to  felonies,  but,  strictly 
speaking,  to  agree  for  a  valuable  consideration  to  forbear 
or  to  stiHe  any  criminal  prosecution,  whether  treason,  felony 

'  Code,  art.  27,  sec.  234. 
M  Leacli.  107. 

•'State  c.  Hodges,  55  Md.  127.     Cf.  1  Bisli.  Cr.  L.,  'i  699. 
■■State  r.  Duhammel,  2  Hair.  (Del.)  532;  Bothwell  r.  Browu.  .51 
III.  234;  Chandler  v.  Johuson.  39  Ga.  85. 
M  Bl.  Comm.  133. 
«1  Bish.  Cr.  L.  'i  710. 


8  CRIMINAL   LAW. 

or  iiiisdeineanor,  is  a  niisdeineaiior/  and  luuler  Stat.  18 
Eliz.,  ch.  5,  which  is  in  force  in  this  as  in  most  other  States,^ 
it  is  made  an  offense  lor  any  person  informing;  nnder  a 
penal  statute  to  compound  with  the  offender  without  leave 
of  Court. 

A  misdemeanor,  however,  may  be  so  small  or  bear  so 
much  of  the  nature  of  a  private  injury  as  will  render  the 
compounding-  of  it  not  indictable.^  In  the  language  of 
Blackstone,*  "It  is  not  uncommon,  when  a  person  is  con- 
victed of  a  misdemeanor  which  principally  and  more  imme- 
diately affects  some  individual,  as  a  battery,  imprisonment 
or  the  like,  for  the  court  to  permit  the  defendant  to  aiieah 
icith  the  prosecutor  before  any  judgment  is  announced,  and, 
if  the  prosecutor  declare  himself  satisfied,  to  intlict  but  a 
trivial  punishment."  In  this  State  such  cases  are  provided 
for  by  statute:" 

In  cases  where  recognizances  to  prosecute  have 
been  entered  into,  and  before  presentment  or  indict- 
ment found,  the  several  courts  of  this  State,  having 
jurisdiction   of  crimes  and   offenses,    upon    motion 
of  the  State's   attorney,   with   the   consent   of  the 
parties  injured  and  accused,  may  compromise  any  as- 
sault  and   battery,  the   party   accused  paying   the 
same  costs  as  would  have  been  incurred  by  the  find- 
ing  a  true  bill  and  plea  of  guilty,  provided,  such 
courts  shall  consider  it  proper  in  reference  to  the 
peace  of  the  State  so  to  do. 
§  13. — Misprision. — Misprision  of  treason  or  felony  is  a 
criminal  neglect,  either  to  prevent  the  treason  or  felony 
from  being  committed  or  to  bring  to  justice  the  offender 
after  its  commission.     The  grade  of  this  offense  is  misde- 
meanor.    Misjjrision,  as  a  substantive  offense,  is  said  to  be 
practically  obsolete.*^ 

§  14. — Merger. — Merger  occurs  in  criminal  law,  where 
the  same  act  of  crime  is  within  the  definition  of  a  misde- 

'  1  Bish.  Cr.  L.  ?  711;  1  Whart.  Cr.  L.,  8  ed.,  'i  1559. 

-Alex.  Br.  Slat.  406. 

M  Bish.  Cr.  L.  ^^711. 

MComm.  363. 

"Code.  art.  10,  sec  19. 

H  Whart.  Cr.  L.,  8  ed.,  'i  249.     Cf.  1  Bish.  Cr.  L.  H  716  721. 


CRIME   AND   DIVISIONS.  9 

nieaiior  and  likewise  of  a  ft'loii.v,  or  of  a  felony  and  likewise 
of  treason,  and  the  rnle  is,  that  the  lowei-  giadt*  of  olfense 
merges  in  the  higher,  so  that  the  act  can  be  punished  only 
as  felony  in  the  one  instance  or  treason  in  the  other. 
Hence,  under  the  common  law  doctrine,  if  a  statute  creates 
a  felony  of  wh.at  was  before  a  misdemeanor,  or  a  niisde- 
meanor  of  what  was  before  a  I'elony,  there  can  be  no  sub- 
sequent prosecution  of  the  act  for  what  it  was  before  the 
statute.'  The  law  in  this  respect  has  been  changed  by  the 
following  statute  i)rovision:- 

All  indictments  for  offenses  forbidden  by  any 
statute  or  statutes  or  for  ofleuses  the  punishment  of 
wliich  is  contained  in  the  same  clause  of  any  statute 
witli  the  prohibition  of  the  ott'ense  may  conclude  as 
for  offenses  at  common  law  ;  and,  where  any  offense 
which  is  a  misdemeanor  at  common  law  may  have 
been  made  a  felony  by  statute,  the  misdemeanor 
shall  not  be  merged  in  the  felony,  but  the  indictment 
may  contain  counts  lor  the  said  felony  and  also  for 
the  misdemeanor. 


'  1  Bish.  Cr.  L.  U  786-790. 
''Code,  ait.  27,  sec.  287- 


CHAPTEE   II. 
Criminal  Capacity  and  Eesponsibility. 

§  15. — Corporations. — A  cori)oratioii  may  be  indicted 
for  neglect  or  nou-feasance,  as  for  not  repairing  a  road  or 
bridge  or  a  wharf,  where  the  duty  to  do  so  is  cast  upon  it 
by  law;  also  for  an  act  of  malfeasance  coming  within  the 
scope  of  the  corporate  duty,  as  for  a  nuisance  in  obstruct- 
ing a  highway  or  river;  but  a  corporation  cannot  be  guilty 
of  treason  or  felony,  or  crimes  involving  violence  or  immo- 
rality, or  otfences  which  derive  their  character  from  a  cor- 
rui)t  mind.  The  limits  of  the  liability  to  indictment  de- 
pend chieiiy  on  the  nature  and  duties  of  the  particular 
corporation  and  the  extent  of  its  powers  in  the  special 
matter.^  Though  a  cori)oration  is  indictable  for  a  particular 
wrong,  still  the  individual  members  and  officers  who  par- 
ticipate in  it  may  be  also  for  the  same  act.- 

§  IG. — Infants. — Every  person  is,  at  the  common  law, 
considered  an  infant  until  he  has  attained  the  age  of  twenty- 
one  years,  and  this  period  is  adopted  in  this  State  and  the 
United  States  generally,  the  full  age  of  twenty-one  years 
being  computed  to  be  completed  on  the  first  instant  of  the 
day  preceding  the  twenty-first  anniversary  of  his  birth. ^ 
The  word  minor  bears  the  same  meaning  as  infant'  and  is 
used  interchangeably  with  the  latter  expression  in  our 
statute  law.  Although  in  the  case  of  female  infants  an 
enlarged  capacity  to  act  in  certain  matters  is  conferred  by 
statute,  tliey  are  not,  upon  such  account,  considered  as 
being  of  fnll  age  before  twenty-one."     Under  seven  years. 


'  1  Bish.  Cr.  L.  ii^.  417-424: 1  Whart.  Or.  L.,  8  ed.,  U  91-93;  Germania 
V.  State,  7  Md.  1:  P.  W.  &  B.  R.  R.  v.  State,  20  lb.  157:  Mayor  v. 
State,  30  lb.  112-,  Che.sapeake  Club  v.  State,  63  lb.  446. 

''  I  Bish.  Cr.  L.  ?.  424;  Seim  v.  State,  55  Md.  566. 

^Co.  Litt.  79:  State  v.  Clarke,  3  Harr.  Del.  557. 

"*  Bouv.  Law  D.  and  Abbott  Law  D.,  title  ''Minor. "' 

■'  Waring  v.  Waring,  2  Bl.  673:  Greenwood  v.  Greenwood,  28  Md.  3G9. 


CRIMINAL   CAPACITY   AND   RKSPONSIllILITY.  11 

an  infant  is  deeniod  conclusively  incapahh;  of  coinnmiiu^i' 
any  crime.'  Between  the  aj^cs  of  seven  and  fonitct-n,  an 
infant  is  ]M'esnnie(l  tol)e  doli  incapax;  but  the  presumption 
may  be  overcome  by  proof  of  j;uilty  knowledge  of  wronj;- 
doing.-  Such  proof,  however,  ought  to  be  ''strong  and 
clear,  beyond  all  doubt  and  contradiction."''  fn  cases  of 
rajje  the  law  conclusively  presumes  a  boy  under  fourteen 
years  of  age  impotent  as  well  as  wanting  discretion,  so  that 
evidence  is  not  admissible  to  show  that  in  fact  \nt  had 
arrived  at  the  full  state  of  puberty  and  could  commit  the 
offense.^  The  same  rule,  applies  to  the  ofleuse  of  assault 
with  intent  to  rape.'  Above  the  age  of  fourteen  criminal 
responsibility  attaches  to  infants  as  in  the  case  of  adults. 

§  17. — Coverture. — The  doctrine  in  relation  to  the  crim- 
inal resi)onsibility  oi  femcH  vorcri  has  been  explained  in 
this  State  as  follows  :  ^ 

"The  common  law,  assuming  that  the  free  agency  of  a 
mariied  woman  is  merged  in  the  dominion  of  her  husband, 
presumes  that,  if  a  wife  act  in  company  with  her  husband 
in  the  commission  of  a  felony,  other  than  treason  or  honji- 


'  1  lust.  2;  1  Hale,  19,  20;  4  Bl.  Coram.  23:  Marsh  v.  Loader,  14  C. 
B.  N.  S.  535;  R.  v.  Giles,  1  Moody  0.  C  166;  R.  v.  luhabilants  of 
King's  Langley,  1  cJtr.  6:Jr.  People  v.  Townsend,  3  Hill  N.  Y.  479. 

'  1  Hawk.  c.  1,  s.  H;  4  Bl.  Coram.  23;  R.  v.  Owen.  4  C  &  P.  236;  R. 
V.  Groombridge,  7  lb.  5b2;  R.  v.  Vanplew,  3  F.  &  F.  020;  R.  v.  Smith, 
1  Cox  C.  C.  260;  R.  v.  Manley,  lb.  104:  State  v.  Goiu,9  Humph.  175: 
State  c.  Pugh,  7  Jones  N.  C.  61:  State  v.  Guild,  10  N.  J.  L  163:  God- 
frey f.  State,  31  Ala.  323;  State  r.  Doherty,  2  Teun.  bO;  Coram,  v. 
Mead,  10  Allen,  398;  State  f.  Learuard,  41  Vt.  585;  Willet  i'.  Coram-, 
13  Bush,  230;  State  v.  Fowler,  52  Iowa,  103. 

The  onus  of  proof  as  to  his  age  has  been  held  to  lie  on  tlie  pi  isomer, 
as  the  reputed  age  of  every  one  is  peculiarly  within  his  knowledge. 
State  V.  Arnold,  13  Ired.  184. 

^4  Bl.  Comm.  24. 

M  Hale.  030;  R.  r.  Eldershaw,  6  C.  &  P.  396;  R.  c  Groombridge. 
supra:  R.  v.  Phillips,  8  C.  &  P.  736;  R.  v.  Jordan,  9  lb.  118;  R.  v. 
Bnmilow,  lb.  366;  S.  C,  2  Moody,  122;  Coram,  c.  Green.  2  Pick.  380; 
State  c.  Handy,  4  Harr.  Del.  506.  Contra.  People  r.  Randolph,  2 
Park.  C.  C.  174;  VViUiaras  r.  State,  14  Ohio,  222;  OMeara  r.  State. 
17  O.  St  515:  Moore  r.  State,  lb.  521. 

*R.  V.  Phillips,  supra;  R.  i\  Groombridge,  supra:  R.  c.  Eldershaw. 
supra.     Contra.  Coram.  /•.  Green,  su2>ra. 

'^  Nolan  V.  Traber,  49  Md-  460. 


12  CEI3IINAL   LAW. 

cide,  slie  acts  luider  liis  coercion  and,  consequently,  with- 
out any  guilty  intent.  Sir  William  Blackstone  said,  this 
doctrine  was  at  least  a  thousand  years  old  in  England, 
being  found  among  the  laws  of  King  Ina,  the  West  Saxon. 
An  eminent  jurist,  in  a  recent  work,  says,  this  presumption 
may  now  be  rebutted  ))y  positive  proof  that  the  woman 
acted  as  a  free  agent,  and,  in  one  case  that  was  much  dis- 
cussed, the  Irish  judges  appear  to  have  consider(?d  that 
such  positive  proof  was  not  required,  but  that  the  question 
was  always  one  to  be  determined  by  the  jury  on  the  evidence 
submitted  to  them.^  The  relation  of  husband  and  wife, 
however  absolute  in  the  past,  no  longer  implies  such  sub- 
serviency of  the  latter  as  to  make  her  the  slave  of  her  hus- 
band. By  gradual  modifications  of  the  common  law,  the 
wife  has  become,  in  a  great  measure,  the  peer  of  her  hus- 
band in  the  control  of  her  property  and  person,  enjoying 
exemptions  and  privileges  which  raise  her  above  all  suspi- 
cion of  moral  constraint,  except  in  rare  instances.  The 
legal  status  of  the  wife,  although  legally  inferior  in  respect 
of  the  jus  disponendi  of  some  species  of  pro[)erty  and  sub- 
jection to  marital  rights,  is  yet  so  elevated  as  to  protect 
her  from  all  necessity  of  compliance  with  the  husband's 
will  in  matters  mala  in  se.  The  better  opinion  would  seem  to 
be,  that  the  presumption  of  coercion  by  the  husband  in  cases 
of  indictments  or  prosecutions  against  husband  and  wife 
jointly  is  only  prima  facie,  subject  to  be  controlled  by  evi- 
dence that  the  wife  intervened  voluntarily  and  not  by 
compulsion."  - 

The  general  rule  as  given  by  a  leading  American  text- 
writer  may  be  thus  stated:^ — Actual  constraint  inijiosed  by 
a  husband  on  his  wife  will  relieve  her  from  the  legal  guilt 
of  any  crime  whatever,  when  the  act  is  done  in  his  i)res- 
ence,  i.  e.,  within  the  range  of  his  personal  and  present 
influence.  Exceptions  are  offenses  wliich  show  so  much 
malignity  as  to  render  it  improbable  that  a  Avife  would 
be  constrained  by  her  husband  without  the  separate  opera- 

'  R.  V.  Stapletoii,  1  Jebb  C.  C.  93:     Taylor  Ev.,  6  ed.,  191. 
-R.  V.  Hughes,  I  Lewiii  C.  C  329:  R.  v.  Pollard,  S  C   &  P.  053:  R. 
V.  Stapleton,  svpra;  1  Greenl.  Ev.  ?  28,  n.  5;  3  lb  ,  'i  7. 
^  I  Bish.  Cr.  L.  i<?  356-866. 


CRIMINAL   CAPACITY   AND   KESPONSIBILITY.  13 

tion  ol'liorown  will  into  tlicircoininissioii  and  tliose  whicli, 
while  of  less  niii^iiitude,  women  are  .snpposed  peeiiliailv  to 
participate  in.  Of  the  aggravated  otien.ses  are  tieason, 
probahly  murder,  possibly  robbery,  and,  it  may  be,  the 
list  shoidil  l)e  even  more  extended.  Of  the  oti'enses  pecu- 
liar to  the  female  sex  is  tiie  keeping  ol'  brotliels  and  other 
disorderly  houses.' 

A  wife  can  not  be  ma«le  an  accessory  after  riie  lact  to 
her  husband's  felony,  though  harboring"  him  with  know- 
ledge of  it;  but  this  is  upon  the  [»rincii)le  that  she  is  not 
punishal)le  for  comforting  and  assisting  her  husband  rather 
than  ujion  the  ground  of  sui)posed  coercion. - 

§  18. — The  Doctrine  of  Evil  Intent. — Crime  can  not 
exist  without  a  criminal  mind,  without  the  concurrence 
of  a  wrongful  act  and  a  conscious,  wilful  mental  design 
in  the  perpetration.  The  doctrine  requiring  an  evil  intent 
to  bring"  any  action  within  the  sphere  of  criminality  is 
fundamental  and  unvarying,  admitting  of  no  exception  or 
moditication.  It  derives  its  force  not  alone  from  universal 
or  well-nigh  universal  acce[)tance  in  the  legal  systems  of 
the  various  nations,  but  it  is  Ibunded  in  the  religious  and 
moral  sentiment  of  mankind,  which  condemns  the  inflic- 
tion of  i)unishment  uj)on  one  who  traugressed  not  in  his 
heart  as  unjust  and  oppressive.  "The  calm  judgment  of 
mankind  keeps  this  doctrine  among"  its  jewels.  In  times 
of  excitement,  when  vengeance  takes  the  i)lace  of  justice, 
every  guard  around  the  innocent  is  cast  down,  lint  with 
the  return  of  reason  comes  the  public  voi<-e,  that,  where 
the  mind  is  i)ure,  he  who  dillers  in  act  from  his  neighbors 
does  not  offend."^  If  a  case  is  really  criminal,  if  the  end 
sought  is  punishment  and  not  the  redress  of  a  jyrivate 
wrong,  no  circumstances  can  render  it  just  or  consistent 
with  a  sound   jin  isprudeuce  for  the  court  or  a  jury  to  pro- 

'  It  is,  moreover,  iu  this  State,  expressly  provided  by  statute  lliat, 
whenever  a  liceusc  shall  have  beeu  issued  to  a  feme  covert  to  trade 
or  to  sell  spirituous  or  ferrneuted  li(iuors.  she  may  be  sued  or  iu- 
dicted  aud  prosecuted,  iu  case  of  a  violatiou  by  lier  of  the  license 
law  of  tliis  State,  or  in  case  she  should  keep  a  disorderly  house,  as 
if  she  were  a  feme  .sole.     Code,  art.  n6,  sec-  36. 

2  Reg.  V.  Good,  1  C.  &  K.  18");  Reg.  r.  Manning,  2  lb.  887,  903. 

■'  I  Bish.  Cr.  L.  <!  289. 


14  CRIMINAL    LAW. 

iionnce  against  the  defendant  unless  lie  was  guilty  in  bis 

mind/ 

§  19. — Ignorance  of  Law. — Mere  ignorance  of  the  law. 

however  will  not  excuse  tbe  offender.  J(/ nor antia  juris  non 
excusat.  Ignorance  of  the  law,  whether  in  a  civil  or  crimi- 
nal action,  affords  no  defense,  and  evidence  of  such  igno- 
rance is  inadmissible,'  This  applies  as  well  to  mala  pro- 
hibita  as  mala  in  se.  Thus,  upon  an  indictment  for  violating 
the  license  laws  relating  to  the  sale  of  spirituous  liquors, 
the  fact  that  a  party  supposed  that  he  had  a  lawful  right  to 
sell  in  a  certain  way  or  that  he  acted  under  the  advice  of 
counsel  is  no  answer  to  the  charge.^ 

§  20. — Ignorance  of  Fact. — The  general  rule  is,  that 
ignorance  or  mistake  in  point  of  fact  is  in  all  cases  of 
supposed  ofifense  a  sufficient  excuse.  Ignorantia  faeti  ex- 
cusat. But  it  must  be  a  mistake  of  fact  "neither  induced 
nor  accompanied  by  any  fault  or  omission  of  duty."*  The 
case  of  Carroll  v.  State'^  affords  an  illustration. 

This  case  arose  upon  an  indictment  against  a  licensed 
dealer  in  spirituous  li(]uors  who  was  charged  with  unlaw- 
fully selling  liquor  to  a  minor.  The  sale  was  made  by  the 
appellant's  l)ar  tender,  out  of  the  presence  of  the  appellant 
and  without  his  knowledge  of  this  particular  sale.  The 
appellant  offered  to  prove,  that  he  had  given  instructions  to 
the  barkeeper,  in  good  faith,  not  to  sell  to  minors,  and  that 
these  instructions  were  understood  by  the  latter  to  be  bona 
fide,  and  that  he  would  not  intentionally  have  violated  them, 
and  that  the  ai)pellant  had  no  idea  of  their  violation  in  t\i\§ 
or  any  other  case.     This  proof  was  held  to  be  inadmissible. 

"The  question  here  is,"  said  the  Court,  "whether,  when 
the  agency  for  the  transaction  of  the  business  of  selling 
liquors  generally  is  established  and  admitted  and,  in  the 
conduct  of  that  business,  a  prohibited  sale  is  made  by  the 
agent  to  a  minor,  the  principal  may  shield  himself  from 
liability  on  the  ground  that  his  agent  violated  his  general 


'  1  Bish.  Cr.  L.  ^.  291. 

'Grumbiue   v.  State,   60   Md.   355:  Slytner  v.   State,  62  lb.    237-, 
Mincher  c  Stale,  (56  lb.  227,  236. 
•'Forwood  V.  State,  49  Md.  531. 
*  1  Bish.  Cr.  L.  'i  303. 
^  63  Md.  5)1.     Cf.  State  v.  Probasco,  62  Iowa,  400. 


CRIMINAL   CAPACITY   AND   RESPONSIIULITY.  15 

iiistrnctioiis  and  did  not  iii(|iiiio  or  was  deceived  by  the 
piiridiaser  as  to  his  ao-e.  The  (luestion  is,  whether,  whihi 
derivinf;'  the  prolit  from  the  sale,  tlie  prineipal  can  dele^^ate 
his  (luti/  to  know  that  a  pnrohaser  is  a  lawful  one  to  the 
deterininatiou  of  an  agent  and  be  excused  by  the  agent's 
negligence  or  error." 

"The  law  for  a  violation  of  which  this  api)e]hint  has  been 
indicted  is  a  i)olice  regulation  of  a  very  stringent  character. 
It  is  in  these  words  :  'If  any  person  shall  sell  any  spiritu- 
ous or  fermented  liquors  or  lager  beer  to  any  person  who  is  a 
minor  under  twenty-one  years  of  age,  be  shall,  on  convic- 
tion, pay  a  tine  of  not  less  than  tifty  dollars  nor  more  than 
two  hundred  dollars,  together  with  the  costs  of  prosecution, 
and.  upon  failure  to  pay  tlie  same,  shall  be  committed  to 
gaol  and  contined  therein  until  such  line  and  costs  are  paid, 
or  for  the  period  of  forty  days,  whichever  shall  first  occur, 
and  it  shall  be  the  duty  of  the  court  before  whom  said 
person  shall  be  convicted  to  su])press  his  license.'  For  the 
violation  of  a  statute  of  this  nature  it  is  not  necessary  to 
allege  the  scienter  in  the  indictment,  because  it  is  not  made 
an  ingredient  by  the  statute,  that  the  thing  shall  be  knoic- 
in<ily  and  iril/ullij  done  to  make  the  violation  of  the  statute 
an  otfense.  As  ignorance  of  the  existence  of  such  law  will 
not  excuse,  so  also  ignorance  of  a  fact  necessary  to  be 
known  to  avoid  a  violation  of  the  law  will  not  excuse.' 
Where  an  act,  if  done  knowingly,  I  would  be  malum  in  se, 
ignorance,  which  excludes  the  idea  of  intentional  wrong, 
it  seems,  will  excuse;  but,  Mr.  Greenleaf  says,  in  section  21 
of  Volume  3  of  his  work  oji  Evidence,  'where  a  statute  com- 
mands that  an  act  be  done  or  omitted,  which,  in  the  absence 
of  such  statute,  might  have  been  done  or  omitted  without 
culpability,  ignorance  of  the  fact  or  state  of  thing  con- 
templated by  I  he  statute,  it  seems,  will  not  excuse  its  vio- 
lation." lie  adds:  'Such  is  the  case  in  regard  to  fiscal  and 
police  regulations,  for  the  violation  of  which,  irrespective  of 
the  motives  or  knowledge  of  the  party,  certain  penalties  are 
enacted;  for  the  law  in  those  cases  seems  to  bind  the  party 
to  know  the  facts  and  to  obey  the  law  at  his  jjcril.'  In  the 
note  to  this  section,  instances  are  given  where  such  rule 


'SGreeul.  Ev    U  20,  21. 


1(5  CRIMINAL   LAW. 

applies:  and  it  is  said  to  apply  to  tlie  saleof  any  article  the 
sale  of  which  is  pioliibited,  and  it  lias  been  held  to  be  no 
excuse  that  the  vender  did  not  know  it  was  the  prohibited 
article.  The  sale  of  spirituous  liquors,  where  proliibited, 
is  specially  mentioned  as  within  this  rule,  as  also  the  allow- 
ance of  minors  to  play  at  billiards,  where  that  is  prohibited. 
Tliis  doctrine  is  maintained  in  Comm.  v.  Enimons^^  Mc 
Cittcheon  r.  rcople,"  BarneH  v.  State,^  State  v.  Hartjield,* 
Ulrich  V.  Comm.,^  and  in  very  many  otlier  cases  in  ]\Iassa- 
chusetts  and  other  States.  It  is  upon  the  ground  that  in- 
tention is  not  an  essential  ingredient  of  the  ofl'ense  that 
the  principal  is  held  bound  for  the  act  of  his  agent  in  viola- 
tion of  law  whilst  pursuing  his  ordinary  business  as  agent. 
Being  engaged  in  business  where  it  is  lawful  to  sell  to  all 
persons  except  such  as  are  by  law  excepted,  it  is  his  duty 
to  know,  when  a  sale  is  made,  that  it  is  to  a  properly  situ- 
ated person.  Therefore,  it  is  his  duty  to  trust  nobody  to 
do  his  work  but  some  one  whom  he  can  safely  trust  to  dis- 
charge his  whole  duty,  and,  if  he  does  not  do  so,  the  law 
holds  him  answerable." 

"The  leading  case  of  R.  v.  Gutch,^  cited  in  1  Tayl.  Ev., 
827,  states  the  law  as  it  is  now  generally  received.  The 
prosecution  was  for  a  libel.  Lord  Tenterden  says:  'A 
person  wlio  derives  profit  from  and  who  furnishes  the  means 
for  carrying  on  the  concern  and  entrusts  the  business  to  one 
in  whom  he  confides  may  be  said  to  have  published  himself 
and  ought  to  be  answerable. '  In  Ke(/.  v.  Bishop' the  de- 
fendant was  convicted  of  receiving  into  her  house  two  or 
more  lunatics,  not  being  a  registered  asylum  or  house  duly 
licensed  by  law.  The  jury  found  s])ecially,  that  the  defend- 
ant honestly  and  on  reasonable  grounds  believed  that  the 
persons  received  into  her  house  were  not  lunatic,  though 
the  jury  found  they  were  lunatic.     The   point,   being  re- 


1  9S  Mass.  6. 

2  69  111.  6CS. 

3  19  Conn.  .398. 
■>  24  Wis.  60. 

5  6  Bush,  Ky.  400. 
«M.  &  M.  433. 

'L.  R.  5  Q.  B.  D.  259:  14  Cox  C.  C.  404:  49  L.  J.  M.  C  45:  28  W. 
R.  475;  42  L.  T.  240;  44  J.  P.  330. 


CRIMINAL    CAPACITY   AND   RESPONSIBILITY.  17 

served,  was  heard  Ixdore  ("oleridjie,  JJeimian,  Steplieii, 
Pollock  and  Field,  all  of  whom  allinned  the  conviction, 
holdin;4  that  such  heliel  was  iiniiiatciial.  The  Coiiit  held, 
that,  to  hold  otherwise,  would  IVustrate  the  ohjeet  ol"  the 
statute.  In  Unhjate  r.  IJai/ncs'  the  apiiellant  was  <diar<ied 
with  .s»/7"rr/^/// //^m/y^r/ to  be  cairied  on  upon  her  premises. 
She  had  retired  for  the  niyht.  leaving  the  house  in  charge 
of  the  hall  jxtrtei'.  wlio  withdiew  his  (diair  to  a  i>art  of  the 
hotel  remote  from  the  guests,  and  did  not  see  the  gaming. 
It  was  held  that  the  landlady  was  answerable  The  same 
principle  was  maintained  in  Miillinfi  r.  Collins,"  where  a 
servant  of  a  licensed  victualer  supplied  liquor  to  a  constable 
on  duty  without  authority  Jrom  his  .superior  officer.  The 
Court  held,  that  thi^  licensed  victualer  was  answerable, 
though  he  liad  no  knowledge  of  tlie  act  of  his  servant.  So, 
also,  in  a  more  recent  case  in  the  Queen's  Bench,  Cundyv. 
Le  Coeq,^  wliere  a  person  was  convicted  under  the  Licensing 
Act  of  1872  of  liaving  sold  liquor  to  a  drunken  peison,  the 
question  was  reserved,  whether,  as  it  was  i)roved  that 
neither  the  defen<hnit  nor  his  servants  knew  the  man  was 
drunk,  and  there  were  no  indications  of  his  being  intoxi- 
cated and  they  had  no  means  of  knowing,  he  could  be  con- 
victed. The  Court,  through  Judge  Stephen,  atlirmed  the 
conviction,  holding  that  it  was  no  defense  against  convic- 
tion and  was  only  a  ground  ior  mitigation  in  punishment. 
In  McCutclieon  v.  People*  the  indictment  was  for  the  same 
oliense  as  that  charged  in  this  case,  and  the  Court  lay 
down  the  law  as  we  think  it  is  and  ought  to  be,  as  the 
logical  result  of  the  immaterialitv  in  such  case  of  criminal 
intent,  as  all  the  cases  we  have  cited  establish.  The  Court 
says,  'this  construction  imposes  no  hardship  on  the  licensed 
seller.  If  he  does  not  know  the  i)arty  who  seeks  to  buy  in- 
toxicating li(piors  at  his  counter  is  legally  comitetent  to  do 
so.  he  must  refuse  to  n)ake  the  sale.  If  he  violates  either 
clause  of  the  statute,  he  must  sutler  the  ])enalty  of  its  vio- 
lation.    It   is  no  answer  to  this  vi<'W  to  say,  the  licensee 

'  L.  R.  1  Q.  B.  D.  ^9:  45  L.  J.  M.  C.  65;  33  L.  T.  779. 
.    ''L.  K.  9  Q.  B.  292;  43  L.  J.  M.  C  67;  29  L.  T.  83S;  22  \V.  R.  297. 

3  L.  R.  13  Q.  B.  D.  207;  57  L.  J.  M.  C.  125;  51  L.  T.  265;  32  W.  R. 
769;  48  J.  P.  599. 

"*  Supra. 


18  CRIMINAL   LAW. 

may  sometimes  be  imposed  on  and  made  to  suffer,  when  he 
had  no  intention  to  viohite  its  i)rovisions.  This  is  a  risk 
incident  to  the  business  wliich  he  undertakes  to  conduct, 
and,  as  he  receives  all  the  gains  connected  therewith,  he 
must  assume  all  the  hazards.'  The  Court  adds,  that  it  is 
immaterial  whether  the  sale  was  made  by  the  api)ellant  or 
an  agent,  and  that,  it  made  by  an  agent,  the  presumption 
is  conclusive,  that  he  acted  within  the  scope  of  his  au- 
thority. When  the  agent,  as  in  this  case,  is  set  to  do  the 
very  thing  which  and  which  only  the  principal's  business 
contemplates,  namely,  the  dispensing  of  liquors  to  pur- 
chasers, the  principal  must  be  chargeable  with  the  agent's 
violation  of  legal  restrictions  on  that  business.  His  gains 
are  increased,  and  he  must  bear  the  consequences.  The 
fact  that  he  has  given  orders  not  to  sell  to  minors  only 
shows  a  bona  Jide  intent  to  obey  the  law,  which,  all  the  au- 
thorities say,  is  immaterial  in  determining  guilt.  The  court 
may  regard  such  fact  in  graduating  punishment,  when  it 
has  a  discretion."^ 

§  21. — Mental  Incapacity. — (Questions  connected  with 
the  effect  of  mental  inliruiity  upon  the  responsibility  of 
persons  laboring  thereunder  form  one  of  the  most  difficult 
portions  of  criminal  jurisprudence.  It  is  universally  con- 
ceded, that  sanity,  or  mental  soundness,  is  an  essential 
ingredient  in  crime;  but  the  application  of  the  doctrine  to 
particular  cases  has  produced  a  great  conflict  of  judicial 
0[)inion  and  variety  of  ruling,  rendering  the  study  of  this 
subject  diflicult  and  perplexing.  A  few  suggestions  and 
views  will  be  here  set  forth  which,  it  is  hoped,  will  prove 
helpful  in  the  study  of  the  subject. 

Whatever  is  unavoidable  is  no  crime.^  Hence,  when  ,from 
any  canse,  there  is  a  lack  of  mental  capacity  to  entertain  a 
criminal  intent,  there  can  be  no  guilt;  or,  as  the  doctrine 
has  been  otherwise  expressed,  in  order  to  constitute  a 
crime,  a  person  must  have  intelligence  and  capacity  enough 
to  have  a  criminal  intent  and  purpose.  And,  if  his  reason 
and  mental  powers  are  so  deficient  that  he  has  no  will,  no 
conscience  or  controlling  mental  power,  or  if,  through  the 

>  See  also  Bond  v.  Evans,  L.  R.  21  Q.  B.  D.  249. 
2  Ruth.  Inst.  c.  18,  'i  9;  1  Bish.  Cr.  L.  i  346. 


CRIMINAL    CAPACITY    AND   KESPONSIIJILITY.  19 

overwlieliniii^"  violence  of  mental  disease,  bis  intellectual 
power  is,  loi-  the  time,  obliterated,  lie  is  not  a  responsible 
moral  ajjjent  and  is  not  [)nnis]iable  for  criminal  acts.'  The 
party  need  not  be  an  idiot  or  maniac,  ravin<^  mad  or  sunk 
in  mental  stupor,  in  order  to  be  exempt  from  res[)onsibility 
or  to  come  within  the  legal  definition  of  insanity.  In  tlie 
criminal  law,  insanity,  according  to  a  leading  text-writer, 
is  any  defect,  weakness  or  disease  of  mind  rendering  it 
inca[)able  of  entertaining  the  criminal  intent  which  consti- 
tutes one  of  the  elements  in  every  crime.-  According  to 
another  exposition,  entirely  in  accord  with  this  detinitiou 
and  the  views  above  set  forth,  the  true  test  lies  in  the  word 
power:  has  the  defendant  in  a  criminal  case  the  power  to 
distinguish  right  from  wrong,  and  the  power  to  adhere  to 
the  right  and  avoid  the  wrong — has  the  defendant,  in 
addition  to  the  capacities  mentioned,  the  power  to  govern 
his  mind,  his  body  and  his  estate.' 

The  law  can  go  no  farther  than  to  establish  such  general 
tests  of  criminal  responsibility.  The  multiform  shapes 
whicli  mental  disease  assumes  preclude  the  i)0ssibility  of 
anything  like  an  approximately  accurate  definition  or 
satisfactory  enumeration  of  the  symptoms  and  appearances 
that  betoken  an  unsound  mind.  The  disorder  which  we 
call  insanity  is  a  mystery  not  yet  unraveled.*  In  principle, 
the  law  is  and  must  be,  that  whether,  in  a  particular 
instance,  the  act  alleged  to  be  a  crime  proceeded  from  a 
sane  or  insane  mind,  is  a  question  of  fact,  while  still,  in 
l)ractice,  the  directions  to  jurors  shouhl  extend  to  various 
explanations  ditl'ering  with  the  particular  cases."  The 
question  of  fact  in  such  cases  is  among"  the  most  abstruse 
and  delicate  in  the  range  of  legal  investigation,  and  the 
utmost  care  and  painstaking  judgment  shonid  be  brought 
to  bear  upon  its  determination.  On  the  one  hand,  the 
chiims  of  Justice  must  not  be  allowed  to  sutler  defeat 
through  a  false  plea,  and,  on  the  other  hand,  the  danger 
which  we  underlie  of  rejecting,  in  our  imperfect  knowledge 

'  Comm.  c.  Rogers,  7  Mete  oOO. 

-l  Bish.  Cr.  L.  i!  3S1. 

U  Am.  L.  Rev.  240. 

'Bland lord,  Insanity  and  Its  Treatment,  p.  1. 

M  Bish.  Cr.  L.  g  383. 


I'O  CRIMINAL    LAW. 

and  through  more  want  of  understanding,  a  valid  defense, 
shouki  not  be  lost  sight  of.  "The  memorials  of  our  juris- 
prudeuce, "  says  Mr.  Bishop,  "are  written  all  over  with 
cases  in  which  those  who  are  now  understood  to  have  been 
insane  were  executed  as  criminals."' 

§  22. — Same  Subject — Moral  Insanity. — This  subject 
was  considered  in  the  case  of  tSpencer  v.  ^tate,^  and  it  was 
there  held,  that  what  is  known  as  moral  insanity,  or  lesiou 
of  the  will,  as  an  independent  state  or  condition,  must  be 
declared  to  have  no  place  in  the  law.  Moral  insanity  is  not 
admitted  as  a' bar  to  responsibility,  for  civil  or  criminal 
acts,  except  in  so  far  as  it  may  be  accompariied  by  intel- 
lectual disturbance.  If  the  party  accused  be  competent  to 
form  and  execute  a  criminal  design,  or,  in  other  words,  if, 
at  the  time  of  the  commission  of  the  alleged  ottense,  he  had 
capacity  and  reason  suflicient  to  enable  him  to  distinguish 
between  right  and  wrong,  and  understand  the  nature  and 
consequences  of  his  act,  as  applied  to  himself,  he  is  a 
responsible  agent  and  amenable  to  the  criminal  law  of  the 
land  for  the  consequences  of  his  act. 

Spencer  was  indicted  for  murder.  The  homicide  was 
fully  proven  and  was  admitted  bj-  him.  His  offer  of  proof 
was  as  follows : 

"To  prove  by  himself  that,  in  July,  1884,  his  wife  died, 
and  that,  previous  to  her  death,  she  had  frequently  com- 
plained to  him  of  illness,  the  cause  of  which  she  attributed 
to  a  felonious  assault  made  upon  her  by  the  deceased;  that 
the  traverser  believed,  the  said  assault  was  the  immediate 
cause  of  her  death,  and  that  this  fact  fastened  itself  upon 
his  mind  to  the  exclusion  of  all  other  thoughts;  that,  from 
the  death  of  his  wife  to  the  date  of  the  homicide,  he  was 
nervous  and  restless,  and  that  it  was  impossible  for  him  to 
remain  long  at  one  employment,  by  reason  of  this  condition; 
that  the  dead  body  of  his  wife,  with  the  scars  inflicted  by 
the  deceased,  would  appear  to  him  in  his  dreams,  and  he 
was  constantly  followed  and  haunted  by  the  idea,  that,  so 
long  as  the  deceased  lived,  he  the  traverser,  would  have  no 
peace  or  rest  of  mind,  and  that  he  could  exercise  no  power 

>  1  Bish.  Cr.  L.  ?  390. 
2  69Md. 


fIv'niI.N.M-    (■ArA(  ITV    AM)    R  KSPONSIlilUTV.  L'l 

of  will  or  self-control  over  his  idea;  and  tliat,  since  tlie 
death  of  Dawson,  the  traverser  has  found  rest  and  peace 
and  quiet." 

This  evidence  was  held,  by  both  the  lower  and  the  ap[)el- 
late  courts,  to  be  inadmissible,  for  the  reasons  j,nven, 
unless  it  w«'re  to  be  followed  uj)  by  proof  tending;-  to  show 
that,  at  the  time  of  the  shooting,  the  prisoner  was  insane  or 
deranged  and  thereby  irresponsible  for  his  acts.  The 
evidence  was  hehl  to  I)e  inadmissible  both  as  tending'  to 
show  insaiiity  of  the  prisoner  and  as  affecting  the  degree 
of  the  crime.' 

§  2A. — Drunkenness. — \'oluntary  intoxication  furnishes 
no  excuse  for  crinu'  committed  under  its  influence;  but 
insanity,  whether  permanent  or  intermittent,  when  pro- 
duceil  by  drunkenness,  is  regarded  in  the  same  light  as 
mental  incapacity  from  any  other  cause.  In  cases,  how- 
ever, where  any  particular  intent  is  a  necessary  element 
of  the  offense  charged,  the  fact  of  intoxication  becomes 
material  in  ascertaining  the  state  of  mind  of  the  accused. 
Thus,  when  a  statute  establishing  different  degrees  of 
nnirder  requires  deliberate  premeditation  in  order  to  con- 
stitute murder  in  the  first  degree,  the  question  whether 
the  accused  is  in  such  a  condition  of  mind,  by  reason  of 
drunkenness  or  otherwise,  as  to  be  capable  of  deliberate 
premeditation,  necessarily  becomes  a  material  subject  of 
consideration  by  the  jury.-  So,  the  state  of  mind  produced 
by  intoxication  may  be  considered  by  the  jury  in  determin- 
ing whether  there  was  malice  or  not,  and  whether  the 
killing  was  manslaughter  or  murder;  whether,  in  cases  of 
larceny,  the  taking  was  animo  fnrandi :  whether,  in  cases 
of  forgery,  the  scienter  is  proven;  a^d,  generally,  as   to 

'  Uiyau,  J.,  delivered  u  disseutiug  opinion,  holding  that,  as  the 
entire  question  of  guilt  or  innocence  is,  in  this  State,  committed  to 
the  finding  of  the  jury,  and  as  malice  is  an  indispensable  element 
of  the  crime  of  murder,  the  facts  offered  in  proof,  while  not  show- 
ing that  the  prisoner  was  lunatic  or  insane,  and  not  making  out  a 
case  of  irresjwnsibility  for  crime,  were  pertinent  to  the  inquiry 
whether  he  had  that  "sedate,  deliberate  mind  and  formed  design  "' 
which  are  essential  to  express  malice,  and  should,  therefore,  have 
been  admitted. 

-Hopt  r.    People.  104  U.  S.  631. 


22  CRIMINAL    LAW. 

questions  of  inteut,  purpose  or  motive.'  Intoxicatiou,  per 
sc,  can  be  said  neither  to  aggravate  nor  to  palliate  crime; 
but  the  condition  of  mind  produced  by  intoxication  often 
beconies  material  in  determining  the  existence  of  a  criminal 
intent,  and,  hence,  the  criminality  of  an  act. 


•  1  Bish.  Cr.  L.  U  408-416;  Hopt  v.  People,  siqjra;  23  Am.  L.  Reg 
N   S.  217;  21  Centr.  L.  J.  191;  Reg.  v.  Doherty,  16  Cox  C.  C.  306. 


CHAPTER  III. 
Constitutional  Guarantees. 

§  li 4.— Scope  of  Chapter. — Tlic  ^safognards  thrown 
around  the  lives  and  liberties  of  the  citizen  by  tlie  organic 
laws  of  the  various  states  constitute  an  important  part  of 
criminal  Jurispi'udence  in  the  Tnited  States.  Xo  such  dis- 
cussion as  the  one  undertaken  in  this  work  would  be  ade- 
fpiate  without  some  notice  of  the  bearing  of  these  i)rovi- 
sions  upon  the  rights  of  persons  accused  of  crime.  The 
subject  is  well  and  fully  discussed  in  various  text-books, 
and  it  is  pur|)osed  in  the  following  sections  of  this  chapter 
merely  to  give  the  law  embt)died  in  constructions  placed 
u[)on  the  State  constitution  or  upon  statutes  of  this  State 
in  regard  to  their  validity  under  the  State  or  Federal  con- 
stitution. 

§  25. — Construction  of  Constitution. — General  Rule. — 
The  practice  in  this  State  has  been  for  the  Court  of  Appeals 
not  to  pass  judgment  ui)on  the  constitutionality  of  an  act 
of  the  Legislature,  unless  such  judgment  is  necessary  for 
the  decision  of  the  case  before  it.' 

The  Constitution  should  have  a  common  sense  interpre- 
pretation,  by  which  is  meant  the  sense  understood  by  those 
■who  adopted  it.  Although  it  is  a  well  recognized  law  of 
construction,  that,  where  legal  terms  are  used  in  a  stdtuie, 
they  are  to  receive  their  technical  meaning,  unless  the 
contrary  plainly  ajjpears  to  have  been  the  intention  of  the 


'  State  c'.  Insley,  64  Md.  28. 

Every  intendmeut  should  be  made  in  support  of  a  legislative  en- 
actment, and  it  should  not  be  declared  invalid  except  for  the  plainest 
and  most  conclusive  reasons.  Fell  r.  State,  42  Md.  71.  When,  how- 
ever, an  act  contravenes  the  Constitution,  it  is  simply  null  and  void. 
An  unconstitutional  act  is  not  a  law;  it  confers  no  riglit;  it  imposes 
no  duties;  it  affords  no  protection;  it  creates  no  otiice:  it  is,  in  legal 
contemplation,  as  inoperative  as  though  it  had  never  been  passed. 
Norton  v.  Shelby  County,  118  U.  S.  425,  442. 


24  CRIMINAL    LAW. 

legiislature,  this  principle  does  not  apply  to  the  interpre- 
tation ot  the  ort/auic  law,  which  is  to  be  construed  accord- 
ing to  the  acceptation  of  those  who  adopted  it.' 

§  2G. — Criminal  Prosecutions — Fundamental  Rights. — 
The  Declaration  of  Eights  of  this  State  contains  the  follow- 
ing provisions: 

That,  in  all  criminal  prosecutions,  every  man  hath 
a  right  tobe  informed  of  the  accusation  against  him  ; 
to  have  a  coi)y  of  the  indictment,  or  charge,  in  due 
time  (if  required)  to  prepare  for  his  defense ;  to  be 
allowed  counsel ;  to  be  confronted  with  the  witnesses 
against  him  ;  to  have  process  for  his  witnesses ;  to 
examine  the  witnesses  for  and  against  him  on 
oath;  and  to  a  speedy  trial  by  an  impartial  jury, 
without  whose  unanimous  consent  he  ought  not  to 
be  found  guilty.'" 

That  no  man  ought  to  be  compelled  to  give  evi- 
dence against  himself  in  a  criminal  case.' 

That  no  man  ought  to  be  taken  or  imprisoned  or 
disseised  of  his  freehold,  liberties  or  privileges,  or 
outlawed,  or  exiled,  or  in  any  manner  destroyed  or 
deprived  of  his  life,  liberty  or  property,  but  by  the 
judgment  of  his  peers  or  by  the  law  of  the  land.* 

That  excessive  bail  ought  not  to  be  required,  nor 
excessive  fines  imposed,  nor  cruel  or  unusual  punish- 
ment inflicted  by  the  courts  of  law.^ 
§  27. — Summary  Proceedings. — The  meaning  of  several 
of  the  provisions  above  cited  was  explained  by  the  Court 
of  Appeals  in  the  case  of  tState  v.  Glenn,^  which  arose  upon 
the  construction  of  the  Act  of  1878,  ch.  41.5,  s.  10,  confer- 


'  State  V.  Mace,  5  Md.  337,  330;  Foote  v.  State,  59  lb.  264. 

2  Art.  21. 

=»  Art.  22. 

*  Art.  23.  The  words  "  by  the  judgment  of  his  peers  "  mean  a  trial 
by  jury,  and  the  words  "  by  the  law  of  the  land,"  which  are  copied 
from  Magna  Charta,  are  understood  to  mean  due  process  of  law, 
according  to  the  course  and  usage  of  the  common  law.  Wright  v. 
Wright's  Lessee,  2  Md.  429,  452. 

*Art.  25. 

6  54Md.  572. 


C()^'ST^i'UTI(>NAL    (aiAKANTKES.  2.j 

rin<;"  jniisdictioii  upon  Justices  ol'  the  peace  to  try,  conviet 
and  eoiiiinit  to  the  House  of  Collection  vajiiant  and  lialtitii- 
ally  disoi<l('rly  persons.  The  act  was  hehl  to  be  constitu- 
tional. 

"The  ineaninj4"  of  the  provisions  of  the  J)echiration  of 
Ei<i;hts, ''  said  the  Court,  '•  would  seem  to  be  plain.  When 
it  is  declared,  that  the  party  accused  has  the  ri<;ht  to  be 
inl'ornied  of  the  char<je  ajjainst  him  and  to  have  a  copy  of 
the  indictment  or  charge,  if  required,  to  prepare  for  his  de- 
fense, that  simply  means,  that  no  prosecution  can  be  con- 
ducted in  secret,  but  that  all  prosecutions  shall  be  open  and 
public,  upon  specific  charges  set  forth  by  way  of  indictment, 
or  in  such  other  form  as  the  nature  of  the  prosecution  may 
require,  and  that  the  party  shall  not  be  denied  full  Oppor- 
tunity to  make  his  defense.  And,  when  it  is  declared,  that 
the  party  is  entitled  to  a  sj)eedy  trial  by  an  impartial  jury, 
that  must  be  understood  as  referring  to  such  crimes  and 
accusations  as  have,  by  the  regular  course  of  the  law  and 
the  established  modes  of  jjiocedure,  as  theretofore  prac- 
tised, been  the  subject  of  jury  trial.  It  could  never  have 
been  intended  to  embrace  every  species  of  accusation  in- 
volving either  criminal  or  penal  consequences.  If  that 
were  the  construction,  then  all  cases  of  contempts,  instead 
of  being  the  subject  of  a  summary  jurisdiction,  as  they  have 
always  been  treated,  could  only  be  tried  by  jury." 

''  The  design,  manifestly,  of  the  provisions  of  the  Declara- 
tion of  L'ights  to  which  we  have  referred  was  sim[)ly  to 
declare  and  make  tirm  the  iire-existing  rights  of  the  i)eople, 
as  those  rights  had  been  established  by  usage  and  the  set- 
tled course  of  law.  If  all  cases  of  a  penal  or  criminal 
nature,  where  conviction  may  involve  as  a  consequence, 
either  directly  or  alternatively,  the  imprisonment  of  the 
party,  must  be  tiied  upon  indictment  and  by  jury,  how  is 
the  i>olice  power  in  the  hamls  of  the  various  municijja]  cor- 
l)orations  to  be  enforced  *  If  the  State  has  no  power  to  pro- 
vide by  law  for  the  summary  trial  and  conviction  of  vagrant 
and  disorderly  persons  by  justices  of  the  peace,  it  would 
clearly  follow,  that  no  such  power  could  be  granted  to  be 
exercised  under  charters  or  ordinances  of  municipal  corpo- 
rations, and  the  conse<|uence  w»)ubl  be,  that,  for  the  viola- 
tion of  all  mere  ixtjice  ordinances  jucscribiiiLi"  penalties  for 


2(>  CRIMINAL    LAW. 

their  intrac^tion,  it  would  be  the  right  of  the  party  accused 
to  insist  ui)oii  iudictment  and  trial  by  jury.  Such  a  mode 
of  proceeding-,  if  it  were  practicable,  has  never  been  con- 
tended for,  nor  could  such  a  contention  be  maintained  for 
a  moment." 

§  28. — "Confronted  with  \Vitnesses." — In  declaring 
that  the  i)arty  accused  shall  liave  the  right  to  be  con- 
fronted with  the  witnesses  against  him,  that  provision  of 
the  Declaration  of  Eights  is  not  to  be  understood  as  exclud- 
ing all  other  evidence  except  oral  evidence  of  the  witnesses 
produced  in  court.  Such  has  never  been  its  interpretation, 
nor  does  the  language  warrant  it.  It  is  only  where  the 
prosecution  is  to  be  maintained  by  the  testimony  of  living 
witnesses  that  they  are  required  to  be  produced  in  court, 
confronted  with  the  accused  and  to  deliver  their  testimony 
under  the  sanction  of  an  oath,  and  be  subject  to  cross-ex- 
amination. In  other  words,  no  witness  shall  give  his  testi- 
mony in  secret,  or  out  of  the  presence  of  the  accused  ;  and 
no  party  shall  be  i)ut  upon  his  trial  upon  mere  hearsay 
evidence,  but  the  witness  sliall  be  ])roduced  and  be  subject 
to  all  the  tests  that  the  law  has  devised  for  the  full  disclosure 
of  the  truth.  In  all  this,  however,  there  is  nothing  to  ex- 
clude other  evidence  recognized  and  sanctioned  by  the  law 
as  fit  and  appropriate  means  of  establishing  the  truth  of 
the  charge  against  the  accused.  Isor  can  there  be  any 
question  of  the  power  of  the  Legislature  to  change  the  com- 
moulaw  rules  of  evidence  or  to  ])rescribe  new  rules,  alto- 
gether ditterent  from  those  known  to  the  common  law  ;  and 
it  may  declare  what  proof  shall  be  deemed  or  taken  as 
prima  facie  sufficient  to  establish  any  particular  fact,  even 
in  criminal  cases. ^ 

§  20. — Compelling  Accused  to  Give  Evidence. — Upon 
an  indictment  against  a  cor[)oration  for  a  violation  of 
the  license  laws  relating  to  the  sale  of  intoxicating 
liquors,  it  was  held,  that  a  member,  being  liable  to  indict- 
ment for  any  participation  in  the  violation  of  the  statute,  is 
entitled,  when  called  as  a  witness,  to  insist  upon  his  privi- 
lege of  being  exempt  from  making  any   disclosure   that 

'  Johns  V.  State,  55  Md.  350.  Cf.  People  r.  Jones,  24  Mich.  314,  225: 
Tucker  v.  People,  122  111.  583. 


CONSTITUTIONAL    (iUARANTEKS.  L'7 

nii^iit  be  used  lor  liis  eriiiiiiiation.'  "  This, "said  the  Court 
of  Ai)i)eals,  ''  is  a  iiersonal  privilege  of  the  witness  and 
must  be  claijiied  by  him  upon  oath,  and,  eonsequently, 
neither  the  party  to  the  cause  nor  tlie  counsel  engaged  will 
be  permitted  to  make  the  objection."  The  mere  statement 
of  the  witness  on  oath,  that  he  believes  that  the  answer  to 
the  question  asked  will  tend  to  criminate  him.  will  not  suf- 
fice to  i)rotect  him  from  answering,  if,  from  all  the  circum- 
stances surrounding  the  case,  the  court  is  satisfied  that  the 
answer  will  have  no  such  effect  as  that  claimed  by  the  wit- 
ness. It  is  for  the  court  to  decide,  whether  the  privilege 
is  well  and  bona  fide  claimed  or  not,  and,  therefore,  it  must 
be  able  to  see,  from  the  surrounding  circumstances  and  the 
nature  of  the  evidence  sought  to  be  elicite<l  by  the  answer, 
whether  reasonable  ground  exists  for  apprehending  danger 
to  the  witness  from  his  being  compelled  to  answer.^  For- 
merly it  was  thought,  that,  if  a  witness  chose  to  reply  in 
part,  he  might  be  compelled  to  answer  everything  relat- 
ing to  the  transaction.  But  that  doctrine  has  been  sol- 
emnly overruled,  and  it  is  now  finally  settled  in  the  English 
courts,  that,  after  a  witness  has  been  sworn,  he  nuiy  claim 
his  protection  at  any  stage  (d*  the  inquiry,  and  upon  his  so 
doing,  he  cannot  be  compelled  to  answer  any  additional 
question  that  would  tend  to  criminate  him.  Therefore, 
notwithstanding  the  witness  had  testitied  without  objection 
that  he  had  gotten  whiskey  and  beer  at  the  club-rooms  [of 
the  api)ellant],  he  was  entitled,  upon  further  examination, 
to  insist  upon  his  i)rivilege  as  to  any  additional  fact  that 
it  was  sought  to  have  disclosed  by  him  whereby  he  might 
criminate  himself.'" 


1  Chesapeake  Club  r.  State,  03  Md.  446. 

2 1  Greeul.  Ev.  i>  451:  2  Tayl.  Ev.  1319:  2  Phill.  Ev.  9  ed.  418:  Reg. 
V.  Kinglake,  11  Cox  C.  C  499. 

^2  Tayl.  Ev.  'i  1311;  2  Phill.  Ev.  9  ed.  417,  418;  Reg.  c.  Boyes.  1 
Best  &  Sm.  311;  S.  C,  9  Cox  C  C.  82;  S.  C,  2  F.  &  F.  157. 

M  Greenl.  Ev.  9.  451;  2  Tayl.  Ev.  1319;  1  Wharton  Cr-  L.  7  ed.  I'i 
805,  806;  Reg.  v.  Garbett,  1  Den.  C  C.  236;  S.  C,  2  C.  &  K.  474. 

The  Constitution  foiineily  confided  to  the  Legislature  the  power 
to  compel  a  party  to  give  evidence  against  himself  ['/.  20.  Dec.  of 
Rights,  in  Const.  1776  and  Const.  1851);  but  this  power  was  very 
strictly  interpreted.  Broadbent  v.  State,  7  Md.  416;  Day  v.  State, 
7G.  321. 


28  CRIMINAL   LAW. 

§  30. — Change  of  Venue. — The  power  to  remove  causes 
from  oue  county  to  anotlier  was  au  acknowledged  [)art  of 
the  ordinary  jurisdiction  of  tlie  Court  of  King's  Bench  in 
Enghind,  but  in  this  State  it  has  been  regulated  by  legis- 
lative and  constitutional  provisions.^  x\fter  it  became  a 
constitutional  right,  it  was  held  that  the  Legislature,  by 
ordinary  legislation,  could  not  restrict  but  might  enlarge 
it.  Yet  it  has  always  been  subject  to  be  modified  by  con- 
stitutional amendment.^ 

A  right  conferred  in  regard  to  the  removal  of  causes 
does  not  fall  within  the  class  of  vested  rights.  It  is  but 
a  remedy,  given  to  secure  an  impartial  trial,  which,  at  any 
time,  may  be  altered  or  modified  by  the  proper  authority.' 

§  ol.  Imprisonment  for  Debt. — The  Constitution  of 
this  State  contains  this  provision  : 

No  person  shall  be  imprisoned  for  debt.* 

A  tine  imposed  by  a  justice  of  peace  for  a  misdemeanor 
is  held  not  to  be  a  debt  within  the  meaning  of  the  consti- 
tutional term,  for  the  reason  that  the  evident  intention  of 
the  Constitution  was  to  relieve  those  who  could  not  pay 
their  debts,  not  to  shield  from  punishment  those  persons  who 
had  violated  the  criminal  law — to  provide  a  protection  for 
the  unfortunate,  not  an  immunity  for  the  criminal.^  There 
is  a  broad  distinction  between  imprisonment  for  debt,  within 
the  meaning  of  the  Constitution,  and  imprisonment  for  a 
breach  of  duty  on  the  part  of  a  public  otiicer,  although 
such  breach  may  be  the  neglect  or  refusal  on  his  part  to 
pay  over  money  received  by  him  for  the  use  of  the  State, 
as  in  the  case  of  a  tax  collector.  It  is  no  objection  to  a 
statute  that  it  provides  that,  upon  the  payment  of  the 
money  for  which  he  is  in  default,  either  before  or  after 
conviction,  such  collector  shall  be  discharged  from  prose- 
cution, for  the  reason  that  the  Legislature  has  the  right 
to  prescribe  tlio  terms  and  conditions  upon  which  punish- 


'  Const,  art.  4,  sec.  8  (amended  by  Act  1874  ch.  364) ;  Price  v.  State, 
8  G.  295. 

2 Smith  /;.  State,  44  M<1.  530. 
^  Dulany  v   Stale,  45  Md.  09. 
"Art.  3,  sec.  38. 
•'State  V.  Mace,  5  Md.  337. 


CONSTITUTIONAL    (JUAKANTKKS.  20 

iiient  sliall  Ix-  imposed/  A  statute,-  however,  wliicli  aii- 
thoiized  the  eonmiitinent  of  the  sureties  in  eases  wliere 
bail  had  l)eeii  forfeited  was  hehl  to  be  uneonstitntioiial, 
upon  (lie  f^rouiid  that  a  recogiiizanee  is,  in  languaije  and 
snl)stanee,  a  debt.^  Whetlier  a  statute  iui])osinf?  inii)rison- 
jM<'Mt  for  non-itaynient  of  the  coats  in  a  eriniiiial  case  is  in 
eonllict  with  this  provision,  lias  not  been  settled  in  this 
State.  In  some  states,  under  constitutional  provisions 
similar  to  our  own,  such  legislation  has  been  upheld/  while, 
on  the  other  hand,  there  is  authority  for  the  o[)])osite  doc- 
trine/' 

§  32. — Jury  Judges  of  Law. — Tiie  piovision  in  the  State 
Constitution  upon   this  subject  reads  as  follows: 

In  the  trial  of  all  criminal  cases  the  Jury  shall  be 
the  Judges  of  law  as  well  as  of  fact." 

This  i)rovision  has  been  held  to  be  merely  declaratory; 
it  has  not  altered  the  preexisting  law  regulating  the  i)owers 
of  the  court  and  Jury  in  criminal  cases/  The  jury  in  a 
criminal  ease,  where  a  <iemurrer  to  an  indictment  has  been 
overruled,  thus  sustaining  the  constitutionality  of  a  statute 
upon  which  the  indictment  was  founded,  Mere  held  not  to 
be  the  proper  Judges  of  the  constitutionality  of  the  act, 
and  the  Court  proi)erly  prevented  tlie  counsel  lor  the  tra- 
verser from  arguing  the  question  before  them.*  So,  like- 
wise, the  question  as  to  whether  an  act  of  assembly  be- 
comes operative  or  /lot,  must  be  determined,  as  a  prelimi- 
nary question,  by  the  court,  and  cannot  afterwards  be 
mooted  before  the  jury.'  But,  in  regard  to  the  question 
of  the  legal  sulticiency  of  the  evidence,  the  Jury  are  the 
sole  judges;  any  instruction  given  by  the  court  as  to  the 
law  of  the  crime  is  but  advisory  and  in  no  manner  binding 


'State  V.  Nicholson.  67  Md.  1 

*  Act  1854.  ch.  114. 

=*  Ely's  Case.  Cir.  Ct.  Baltimore  Co..  Oct.  1868. 
■•  Morgan  v.  State,  47  Ala.  34;  Caldwell  r.  State.  55  lb.  133:  Dixon 
r  State.  2  Tex.  481. 

'Thompson  v.  State,  16  Ind.  516. 

®  Art.  15,  sec.  5. 

'Franklin  i:  State,  12  Md.  236:  Bell  r.  State.  57  lb.  lOS,  11^-121. 

*  Franklin  c.  State,  supra. 
"Slymer  v.  State,  62  Md.  237,  241. 


30  CKIMINAL    LAW. 

upon  tlie  jury,  except  in  regard  to  questions  as  what  shall 
be  considered  as  evidence.^  Whenever  ?i 'prima  facie  case 
of  guilt  is  made  out.  it  is  the  duty  of  the  court  to  leave  it 
to  the  jury  to  say,  whether  the  evidence  is  sufficient  in 
law  and  in  fact  to  prove  the  offense."  The  court  may, 
however,  in  its  discretion,  advise  the  jury  as  to  the  law 
and  legal  effect  of  the  evidence.^ 

The  case  of  Bell  v.  State*  arose  upon  an  indictment  for 
forging  and  uttering  an  order  for  the  payment  of  money, 
a  bank  check.  The  State,  in  order  to  prove  the  scienter, 
was  allowed  to  prove  that,  about  the  time  of  the  forgery 
alleged  in  the  indictment,  the  appellant  had  forged  and 
uttered  another  check,  of  the  forging  and  uttering  of 
which,  however,  he  had  been  acquitted,  the  record  of 
acquittal  being  produced  by  the  defense.  In  arguing  the 
case  before  the  jury,  the  counsel  of  the  appellant  con- 
tended that  the  record  of  acfpiittal  was  conclusive  of  the 
case  then  on  trial.  The  Court  interposed  and  refused 
to  permit  such  argument,  upon  the  ground  that  they  had 
expressly  decided  that  it  was  competent  for  the  State  on 
this  trial  to  prove  that  said  second  check  was  a  forgery 
and  was  passed  and  uttered  by  the  prisoner  and  that 
said  record  of  acquittal  was  not  admitted  in  evidence  nor 
allowed  to  go  the  jury  for  the  purpose  of  having  any  such 
conclusive  effect,  but  only  for  the  purpose  of  affecting  the 
weight  or  credibility  of  the  evidence  against  the  prisoner. 
Upon  ai)peal,  this  position  was  sustained,  for  reasons  which 
will  be  given  in  the  language  of  the  Ai)pellate  Court: 

"The  court  has  an  undoubted  right  to  state  to  the  jury 
the  legal  effect  of  evidence  which  has  been  introduced  and 
submitted  to  their  consideration. °  JSTot  having  excepted 
to  the  statement  made  by  the  Court  of  the  legal  effect  of 
the  record,  it  became  the  law  of  the  case."  Being  the  law 
of  the  case,  counsel  were  not  at  liberty  to  argue  against 


'  Wheeler  v.  State,  42  Md.  563;  BroU  v.  State,  4")  lb.  356. 
2  Bloomer  v.  State,  48  Md.  521,  537-540. 
'BroU  V.  State,  .supra;  For  wood  v.  State,  49  Md.  531. 
"*  Supra . 

*McHenry  v.  Marr,  39  Md.  510,  532,  533;  Wheeler  i\  State,  siqva. 
«Hagan  o.  Hendry,  18  Md.  177;  Davis  v.  Patton,  19  lb.   120,  128; 
Dent  V.  Hancock,  5  G.  120.  127. 


CONSTITUTIONAL    (JUAKAKTKES.  31 

it.'  It  is  triH',tliat  article  l."»,  section  ."»  of  tin;  ("oiistitution 
declares,  that,  '  in  tlie  trial  of  all  criminal  cases  the  Jury 
shall  be  the  judges  ol'  law  as  well  of  fact;"  l)nt  this  Court 
has  said,  -that  the  words  in  the  Constitution  have  ii(> 
greater  significance  since  their  incorporation  into  the  or- 
ganic law  than  they  had  i)reviously.''-  This  Court  lias 
also  decided,  that  the  court  has  a  right  to  instruct  the  jury 
in  a  criminal  case  as  to  the  legal  effect  of  evidence,^  and, 
haviiig  such  right,  it  follows,  of  course,  that  it  also  has  the 
right  to  prevent  counsel  ironi  arguing  against  such  an 
instruction.  If  a  jury  shoidd  disregard  an  instruction  m 
a  criminal  case  and  convict,  the  evil  can  he  remedied  by 
granting  a  new  trial.  But  if  they  should  acfpiit  in  disre- 
gard of  it,  there  seenis  to  be  no  remedy." 

§  33. — "Cruel  or  Unusual  Punishment." — This  subject 
was  discussed  in  the  case  of  Foote  r.  iStatc,*  in  which  the 
constitutionality  of  the  statute''  imposing  the  punishment 
of  whii)ping  for  wife-beating  was  maintained.  The  reason- 
ing of  the  Court  is  as  follows: 

•'The  terms  'cruel  and  unusual  pains  and  penalties'  and 
'cruel  or  unusual  punishment-  have  been  incorporated  into 
each  successive  Constitution  of  this  State  from  177(5  to  the 
present  time.  That  the  i)unishment  of  whipping  was  not 
considered  a  'cruel  or  unusual  jjunishment'  and,  therelore, 
coming  within  the  prohibition  of  the  Constitution,  is  most 
conclusivelv  shown  bv  the  fact  that  the  i)unishment  1)V 
whipping  was  recognized  by  the  statute  law  of  the  State 
under  all  these  Constitutions,  certainly  down  to  the  Consti- 
tution of  ISiU,  and  then  only  obliterated  from  the  statute 
l)ook,  not  by  <lirect  repeal,  but  l>y  force  of  the  consti- 
tutional amendment  abolishing  slavery." 

'•It  is  true,  that,  uiuler  some  of  the  later  Constitutions, 
the  punishment  by  the  laws  was  conlined  to  negroes  and 
slaves,  but  the  words  'cruel  or  unusual'  covered  all  cases  of 
punishment  and  were  as  applicable  to  slaves  as  to  whites. 

'  Sowerwein  i\  Jones.  7  G.  «&  J.  ;i3o,  341. 

*Frauklin  c  State,  siqirn. 

^Wheeler  c  State,  sujn-d. 

*od  Md.  2(54.     Cf.  Garcia  c  Territory.  1  N.  Mex.  4l.-i. 

"Act  1882.  ch.  127:  Code.  art.  27,  sees.  14,  15. 


oL'  CKi.MlNAL    LAW. 

At  the  time  ot  the  adoption  of  the  Bill  of  Eights  in  177G, 
aud  for  a  long  time  before  and  for  a  long  time  thereafter, 
the  punishment  of  whipping  for  certain  offenses  was  imposed 
upon  whites  and  blacks  alike.  We  are  not  dealing  with 
the  exj)ediency,  justice  or  efficacy  of  this  punishment,  but 
only  with  the  true  interpretation  of  the  terms  of  the  Consti- 
tution uuder  which  we  live.  When,  therefore,  we  find  that 
the  people  who  made  this  Constitution,  and  who  must  be 
presumed  to  understand  the  meaning  of  the  terms  they  use, 
have,  from  the  time  these  words  were  first  incorporated  in 
1776  down  to  1882,  a  period  of  more  than  a  hundred  years, 
through  several  successive  legislatures,  uniformly  held  that 
the  ])unishmeiit  of  whii)])iug  was  not  included  in  that  class 
which  the  Constitution  forbids,  we  should  violate  the 
plainest  principles  of  the  construction  of  statutes  now  to 
decide  otherwise.  We  have  not  only  the  contemporaneous 
but  the  continued  exposition  of  the  meaning  of  the  words 
in  this  long  course  of  legislative  construction,  upheld  and 
continually  enforced  by  the  courts  in  the  imposition  of  the 
punislnnent." 

§  34. — Internal  Police, — Liquor  Selling. — The  State  has 
a  right  to  regulate  its  internal  police  and  everything  that 
relates  to  the  morals  and  health  of  the  community.  Statutes 
regulating  the  sale  of  li(juors,  or  restraining,  or  even  alto- 
gether prohibiting  the  traffic  therein,  fall  within  this  power 
and  do  not  contravene  any  provision  of  the  Federal  Consti- 
tution.^ There  can  be  no  question  that  the  Legislature  has 
the  power  to  prohibit  the  sale  of  liquor,  notwithstanding  a 
party  to  be  affected  by  the  law  may  have  procured  a  license 
under  the  laws  of  the  State  which  has  not  yet  exi)ired. 
Such  a  license  is  in  no  sense  a  contract  made  by  the  State 
with  the  party  holding  it.  It  is  a  mere  permit,  subject  to 
be  modified  or  annulled  at  the  pleasure  of  the  Legislature, 

'Keller  v.  State,  11  Md.  525.  Cf.  Thurlow  v.  Massachusetts,  5 
How.  504;  McGuire  v.  Massachusetts.  3  Wall.  387;  U.  S.  v.  Vassar, 
5  lb.  4G2-.  Carney  v.  Iowa,  lb.  480;  Hinson  v.  Lott,  8  lb.  148;  Down- 
ham  V.  Alexandria,  10  lb.  173;  Bartemeyer  v.  Iowa,  18  lb.  129;  Beer 
Co.  V.  Massachusetts,  97  U.  S.  25;  U.  S.  v.  43  Gallons  of  Whiskey, 
108  lb.  491;  Foster  v.  Kansas,  112  lb.  '.^01;  Mugler  v.  Kansas,  123 
lb.  623;  Kidd  r.  Pearson,  128  lb.  1. 


CONSTITUTIONAL  GUAKANTEES.  3.'i 

Avlio  liiive  the   power  to   cliimj^e  oi-  repeal   the   law  niider 
wliicli  rlic  license  has  been  fiianted.' 

§  .").">. — Delegation  of  Powers. — Ir  is  a  well-settled  priii- 
ciple.  that  the  power  (H)nterred  upon  a  legislature  to  enact 
laws  cannot  be  delej^ated  hy  that  department  to  any  other 
])ody  or  authority.  Di'lcfidtiis  nniv  (h'lofiare  potrst."  But  a 
statMt<''  by  whicli  the  IJoard  of  Poli(!e  Coniinissionei.s  oi" 
r.altiniore  City  are  authorized  and  empowered,  whenever, 
in  their  Jud^inent,  the  jiublic  peace  and  tranrpiility  may 
reipiire  it,  to  order  the  closin<;'  temi)orarily  of  all  places 
wlu're  lifpior  is  usually  sold  in  the  City  o\'  Baltimore,  was 
held  not  to  exceed  the  legislative  authority  or  to  violate 
any  ])rovision  of  the  Constitution.' 

§  .')(». — Same  Subject — Local  Option  Laws. — A  statute 
providing  that  the  citizens  of  the  several  election  <listricts 
of  certain  counties  shall  cast  ballots  whether  or  not  the  sale 
of  si>irituous  or  fermented  liijuor  shall  be  permitted  in  such 
districts,  and,  if  it  should  be  found  by  the  returns  of  the 
iudji'es  of  election  and  proclamation  of  the  judges  of  the 
Circuit  Court  that  the  majoiity  of  the  votes  in  a  district 
had  been  cast  against  the  sale,  then  it  should  not  be  lawful 
to  sell  liquors  m  such  district,  is  constitutional  and  valid. 
Its  going  into  eti'ect  and  becoming  operative  being  made  to 
depend  upon  the  result  of  a  popular  vote  is  not  a  delegation 
of  legislative  power  to  the  i>eo]»le.  What  has  been  delegated 
to  the  voters  in  such  a  case  is  not  the  power  to  make  the 
•law  (»r  to  repeal  existing  laws.  They  are  called  upon  simply 
to  express,  by  their  ballots  their  oi)inion  or  sentiment  as  to 
the  subject-matter  to  which  the  law  relates.  They  declare 
no  conse(|uences,  i)rescribe  no  i)enalties  an«I  exercise  uo 
legislative  functions.  The  consecpiences  are  declared  in 
the  law  and  are  exclusively  the  result  of  the  legislative  will. 
The  act,  in  such  cases,  is  "a  perfect  and  complete  law  as 
it  left  the  halls  of  legislation  and  w^as  approved  by  the 
(xoveruor, ''  but,  by  its  terms,  it  was  made  to  go  into 
operation   in  any  district  upon  tiie  contingency  that    the 


'  Parkiusou  c  State.  14  Md.  184;  Fell  v.  State,  42  lb.  71.  89. 
-Fell  r.  State,  42  Mil.  71,  84. 
^Code  P.  L.  L.,  art.  4,  sec.  734. 
'  State  c.  Strauss,  49  Md.  28s. 


;U  .  CRIMINAL    LAW. 

legal  voters  within  tlie  district  be  ascertained  to  be  in 
favor  of  the  prohibition  contained  in  the  act.  A  valid  law 
may  be  passed  to  take  effect  upon  the  happening  of  a 
future  contingent  event,  even  where  that  event  involves  the 
assent  to  it  by  other  parties.  It  is  for  the  Legislature  to 
judge  in  what  contingency  or  upon  what  condition  the  act 
shall  rake  effect;  they  have  the  ])ower  to  prescribe  any  they 
may  think  proper.  A  condition  that  a  vote  of  approval 
shall  first  be  given  by  the  people  affected  by  the  proposed 
measure  is  as  good  and  valid  as  any  other.  There  can  be 
no  inherent  vice  in  the  nature  of  such  a  condition  that 
shall  serve  to  defeat  the  act,  when  it  would  be  legal  and 
eifectual  if  made  to  depend  upon  any  other  event.' 

§  37. — Tobacco  Inspections — Powers  of  State  Legis- 
lature.— Section  41  of  chapter  .'>4fi  of  the  Laws  of  1804,  as 
amended  and  re-enacted  by  chapter  291  of  the  laws  of  1870, 
now  repealed  and  re-enacted,-  provided  that  it  should  not 
be  lawful  to  carry  out  of  this  State  in  hogsheads  any 
tobacco  raised  in  this  State,  except  in  hogsheads  which 
shall  have  been  inspected,  passed  and  marked  agreeably 
to  the  provisions  of  the  Act,  provided  that  the  Act  should 
not  be  construed  to  prohibit  auj'  grower  of  tobacco  or  any 
purchaser  thereof,  who  might  pack  the  same  in  the  county 
or  neighborhood  where  grown,  from  exporting  or  carrying 
out  of  this  State  any  such  tobacco,  without  having  the  same 
opened  for  inspection  ;  but  such  tobacco  so  exi)orted  or 
carried  out  of  this  State  without  inspection  was  required  to 
be  marked  with  the  name  in  full  of  the  owner  and  his 
place  of  residence  and  was  liable  to  the  same  charge  of 
outage  and  storage  as  in  other  cases.  This  legislation,  it 
was  held,  was  not,  in  its  provisions  as  to  charges  for  outage 
and  storage,  in  violation  of  clause  2  of  section  10  of  article 
1  of  the  Constitution  of  the  United  States  as  respects  any 
impost  duty  imposed  by  it  on  exports,  or  of  the  clause  of 
section  8  of  article  1,  which  gives  power  to  Congress  "  to 
regulate  commerce  with  foreign  nations  and  among  the 
several  States  j"  nor  could  it  be  regarded  as  a  regulation 
of  commerce  or  unconstitutional  as  discriminating  between 

'  Fell  V.  State,  42  Md.  71 :  Slynier  v.  State,  63  lb.  237.     Cf.  Grouse  r. 
State,  57  lb.  •^21l\  Jones  f.  State,  G7  lb.  2.i6. 
-Code,  art.  48,  sec.  48. 


CONSTl'iTTIONAL    (UTARANTEES.  35 

tliestatebiiyoiaudniamifactiiierofleat'tobaccoaiMl  t  lie  pin- 
chaser  who  biiy.s  for  the  i)uipose  of  transporting  the  tobacco 
to  another  state  or  to  a  fon-ign  country,  or  discriminating 
between  difierent  chisses  of  exporters  of  tobacco.  It  was 
furtiier  held,  that  the  charge  for  outage  is  an  inspection 
duty  witliin  the  meaning  of  the  Constitution,  and  it  is  not 
foreign  to  the  character  of  an  inspection  hiw  to  re<piire 
every  hogshead  of  tobacco  to  be  brought  to  a  state  tobacco 
warehouse  ;  and  that  dispensing  with  an  opening  for  inspec- 
tion of  the  hogsheads  mentioned  in  the  proviso  did  not, 
in  view  of  the  otlier  ])rovisions  of  the  statutes  of  this  State, 
deprive  these  statutes  of  the  character  of  inspection  hxws/ 

^  ;:5S. — Common  Right  of  Fishery. — It  is  settled  that 
the  lands  of  the  State  covered  by  navigable  water  may  be 
granted,  subject  to  the  i)ublic  right  of  navigation  and 
tishery ;  and,  indeiiendently  of  the  question  as  to  the 
power  of  the  Legislature  to  restrict  those  rights  by  grants 
in  severalty,  it  is  clear  that  they  may  be  aided  by  grants 
conferring  i)articular  privileges.  The  power  of  the  Legis- 
lature to  authorize  the  erection  of  wharves  and  the  reclama- 
tion of  land  from  the  water  for  the  i>urpose  of  navigation 
and  commerce  has  never  been  questioned,  notwithstanding 
the  effect  has  been  to  confer  privileges  and  advantages 
wholly  private  and  exclusive  in  their  character.  And  there 
appears  to  be  no  substantial  reason  why  it  may  not,  in 
like  manner,  grant  privileges  affording  particular  and  ex- 
clusive benefits,  for  the  purpose  of  increasing  generally  the 
pi'oduct  an<l  value  of  the  common  right  of  fishery. 

For  reasons  thus  stated,  legislation  authorizing  the  loca- 
tion of  oyster  lots  by  the  owners  of  land  bordering  upon 
navigable  waters  in  this  State  and  punishing  the  ottense  of 
taking  oysters  therefrom  l»y  third  parties  has  been  held  to 
be  constitutional. - 


'  Tuiuer  r.  State,  55  Md.  240;  S.  C,  nam.  Turner  v.  Maryland,  107 
U.  S.  88. 

No  inspection  was  involved  except  that  of  tobacco  grown  in  Mary- 
laud,  and  no  opinion  was  expressed  by  the  Supreme  Court  as  to  any 
provisions  of  Maryland  laws  that  refer  to  inspection  of  tobacco 
grown  out  of   Maryland. 

-Phipps  c.  State,  22  Md.  380.     See,  also,  Code,  art.  72,  sees.  39-41. 


3C}  CRIMINAL    LAW. 

§  39. — Non-resident  Traders. — A  former  statute^  of  tliis 
State,  required  all  traders  resident  within  the  State  to  take 
out  licenses  and  to  pay  therefor  certain  sums  regulated  by 
a  sliding  scale  of  from  $12  to  SloO,  according  as  their  stock 
in  trade  might  vary  from  §1,000  to  more  than  .$40,000.  The 
Statute  also  made  it  a  penal  offense  in  any  person  not  a  per- 
manent resident  in  the  State  to  seli,  offer  for  sale  or  expose 
for  sale,  within  certain  limits  in  the  State,  any  goods, 
wares  or  merchandise  whatever,  other  than  agricultural 
products  and  articles  manufactured  in  Maryland,  within 
the  said  limits,  either  by  card,  sample  or  other  specimen, 
or  by  written  or  printed  trade-list  or  catalogue,  whether 
such  person  be  the  maker  or  manufacturer  theieof  or  not, 
without  first  obtaining  a  license  so  to  do,  for  whi(;h  license 
(to  be  renewed  annually)  a  sum  of  $.300  was  to  be  paid.  It 
was  held  by  the  Supreme  Court  of  the  United  States,-  that 
this  statute  imposed  a  discriminating  tax  upon  non-resident 
traders  trading  in  the  limits  mentioned,  and  that  it  was, 
pro  tanto,  rei)ugnant  to  the  Federal  Constitution  and  void, 
being  in  conflict  with  article  4,  section  2,  which  provides, 
that  "  the  citizens  of  each  state  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  the  several  states. '' 

"This  clause,"  said  the  Court,  "plainly  and  unmistaka- 
bly secures  and  protects  the  right  of  a  citizen  of  one  state 
to  pass  into  any  other  state  of  the  fin  ion  for  the  [lurpose 
of  engaging  in  lawful  commerce,  trade  or  business,  without 
molestation  ;  to  acquire  personal  proj)erty  ;  to  take  and 
hold  real  estate  ;  to  maintain  actions  in  the  courts  of  the 
state  ;  and  to  be  exempt  from  any  higher  taxes  and  excises 
than  are  imposed  by  the  state  upon  its  own  citizens."^ 

Under  the  present  law  of  this  State'  a  person  not  resid- 
ing within  the  State,  who  Avishes  to  carry  on  business 
within  its  limits  is  required  to  pay  the  same  rate  of  license. 


'  Code  of  1860,  art.  56,  sees.  37-40. 
■    2  Ward   r.  Maryland.   12  Wall.  418,  reversing  Ward  v.  State,  31 
Md.  279. 

^See  also  Campbell  v-  Morris,  3  H.  &  McH.  03.");  Douglass  v.  Doug- 
lass, 1  Del.  Ch.  46r);  Lemrnon  /•.  People,  20  N.  Y.  562;  McCready  r. 
Comm.,  27  Gratt.  'J85;  Conner  v.  Elliot,  18  How.  591;  Corfield  v. 
Coryell,  4  Wash.  C  C.  371,  380:  Asher  v.  Texas,  128  U.  S.  129. 

■*  Code,  art.  56.  sees.  35-54. 


CONSTITrTIONAl.    (ilAUANTKlOS.  .it 

ie}j;ulate(l  l).v  the  same  sraiidard,  as  a  rcsiilont.  The  Leg- 
islature, ill  le^iihitiiiff  the  rate  of  license,  has  a(l()i)te«l  as  a 
staiidaid  the  amount  or  value  of  the  stock  in  trade  of  the 
dealer.  This  is  im|K»sed  on  traders  as  a  tax  upon  their  oc- 
cupation or  business  of  vendors,  and  has,  therefore,  been 
held  to  l)e  valid  in  the  case  of  a  nonresident  who  sells  hv 
sainj)le,  the  stock  being  in  another  state.' 

■j  40. — Equal  Rights. — Negro  Apprentices. — Bastardy 
Laws.  — (^)uestioiis  h.ive  arisen  as  to  the  v;iliility  of  statutes 
in  relation  to  ••  negro  ai)i)rentices  " "  and  illegitimate  chil- 
dren,' the  provisions  of  the  Code,  of  18(10  in  lelation  to  the 
latter  having  had  ai)i)lic}ition  exclusi\ely  to  wiiite  women. 
Both  laws  were  held  to  be  ct)nstitutional.  Under  the  i)re- 
sent  Code  distinctions  in  regard  to  "  negro  apprentices"  or 
"white  women"  in  the  apprentice'  nnd  bastardy' laws  do 
not  exist. 

§  41. — Ex  Post  Facto  Laws. —  Every  ex  ijost  facto  law 
must  be  retrospective,  but  every  retrospective  law  is  not 
an  e.v  post  facto  law.  Ex  2>0'Stfacto]A\vs  relate  to  penal  and 
criminal  proceedings,  which  imi>ose  punishment  or  forfeit- 
ures, and  not  to  civil  i)roceedings  which  atfect  private 
rights  retrospect!  vely.*"'  An  ex  post  facto  law  is  one  which 
ren«lers  an  act  punishable  in  a  manner  in  which  it  was  not 
punishable  when  committed.  Any  law  passed  after  the 
coniuiissiou  of  an  ott'ense,  which,  in  relation  to  that  offense 
or  its  consequences,  alters  the  situation  of  a  party  to  his 
disadvantage  is  an  ex  post  facto  law.' 

'  C()rst)ri  ;  .  Slate.  oT   Md.  lo\ . 

■  Blown  r.  State.  23  Md.  r,03. 

•'Plunkaid  r.  State,  67  Md.  364. 

'  Art.  6. 

'  Art.  1','. 

'•  Watsou  r.  Mercer.  8  Pet.  88;  Calder  r.  Bull.  3  Dall.  386;  Baltimore 
«&  S.  R.  R.  /•. 'Nesbitt,  10  How.  39"»:  Carpenter  v.  Pennsylvania,  17 
lb.  4."".6:  Locke  r.  New  Orleans.  4  Wall.  172. 

"  Anderson  c.  Baker,  23  Md.  r)31 ,  582:  Fletcher  r.  Peck.  0  Cninch.  37, 
138;  Cumraings  i'.  Missouri.  4  Wall.  277:  Gut  v.  Minnesota,  9  lb.  35; 
Pierce  v.  Carskadon,  16  lb.  234:  U.  S.  r.  Fox,  9.')  U.  S.  670:  Burgess 
V.  Salmon,  97  lb.  3^1;  Hopt  /•.  LTtah.  110  lb.  574:  Kring  r.  Missouri. 
107  lb.  221.  Jaehne  r.  New  York,  128  lb.  189. 


CHAPTEK   IV. 
STATin'ORY  Construction. 

§  42. — Statutes  Relating  to  Crime  and  Criminal  Pro- 
cedure.— A  ven'  considerable  proportion  of  the  body  of  our 
criminal  jurisprudence  is  composed  of  statute  law.  This 
law  either  creates  new  offenses,  unknown  to  the  common 
law,  or  enlarges  the  definition  of  common-law  offenses,  or 
defines  their  penalty  merely,  or  relates  to  matters  of  trial 
and  procedure.  In  every  aspect,  the  statutory  portion  of 
our  criminal  law  forms  an  important  feature,  and  questions 
of  statutory  interpretation  and  construction  are  among  the' 
most  frequent  and  interesting  ones  that  demand  the  atten- 
tion of  the  practitioner. 

§  43. — General  Rules  of  Construction. — The  cardinal 
purpose  of  all  interpretation,  to  which  all  rules  and  canons 
must  yield,  is  to  ascertain  the  true  legislative  intent,  and, 
where  the  legislative  meaning  is  plain,  the  courts  have 
simi)ly  to  enforce  a  statute  according  to  its  obvious  terms. 
Where  clear  words  are  used  to  indicate  the  purpose  of  the 
lawgiver,  there  is  no  necessity  to  resort  to  other  aids.  It 
is  only  in  cases  where  the  meaning  of  a  statute  is  doubtful, 
that  the  courts  are  authorized  to  indulge  in  conjecture  as 
to  the  intention  of  the  Legislature  or  to  look  to  conse- 
quences in  the  construction  of  the  law.^ 

Statutes  should  be  interpreted  according  to  the  most 
natural  and  obvious  import  of  their  language,  without  re- 
sorting to  subtle  or  forced  construction  for  the  purpose  of 
either  limiting  or  extending  their  operation.  iSTo  man  in- 
curs a  penalty,  unless  the  act  which  subjects  him  to  it  is 
clearly  both  within  the  spirit  and  letter  of  the  statute. 
Things  which  do  not  come  within  the  words  are  not  to  be 
brought  within  them  by  construction.  The  law  does  not 
allow  of  constructive  offenses  or  arbitrary  punishnjent." 


'  Cearfoss  v.  State,  42  Md.  403. 
2  lb. 


STAiriORY    CoN.STin'CTlON.  IV.) 

Penal  statutes  are  not  to  he  exteiHled  ])v  eoiistinctiou, 
yet  sliouhl  receive  a  nitioiial  interpretation.  They  are  to 
be  construed  strictly,  yet  the  courts  are  bound  to  j^ive 
eti'ect  to  their  plain  and  obvious  nieanin;;^",  and  not  narrow 
the  constiuction.  They  niust  search  out  and  lollow  the 
true  intent  of  the  lawgiver/ 

All  the  parts  of  a  statute  and  all  acts,  tliouj^h  made  at 
ditierent  times,  or  even  expired  or  rei)ealed,  and  the  entire 
systeni  of  laws  and  the  common  law  touching:  the  same 
matter  must  be  taken  toj;ether,  and,  if  one  i)ait  standing 
by  itself  is  obscure,  it  may  be  aide<l  !)y  another  which  is 
clear.  = 

§  4t. — General  Terms  Following  Specific  Terms. — 
Where  i)articular  words  in  a  statute  are  followed  by  general, 
— as  if,  after  the  enumeration  of  classes  of  i)ersons  or  things, 
it  is  a<lded,  "and  all  other.Sj''' — the  general  words  are  re- 
.stricted  in  meaning  to  objects  of  the  like  kind  with  those 
specitied,  and,  similarly,  a  statute  which  treats  of  things 
or  persons  of  an  inferior  rank  cannot  by  any  general  words 
be  extended  to  those  of  a  superior.  Yet,  where  the  courts 
can  see  that  the  application  of  this  rule  would  lead  to  re- 
sults contrary  to  the  real  intention  of  the  legislator,  they 
will  not  gi\e  it  effect.' 

§  45. — Legislative  Grants  of  Authority. — Municipal 
Ordinances  and  By-Laws. — It  is  a^well-settled  rule  of  con- 
struction of  grants  by  the  Legislature  to  corporatnms, 
whether  })ublic  or  private,  that  only  such  powers  and  rights 
can  be  exercised  under  them  as  are  clearly  comi)rehended 
within  the  words  of  the  act,  or  derived  therefrom  by  neces- 
sary implication,  regard  being  had  to  the  objects  of  the 
grant.  Any  ambiguity  or  doubt  arising  out  of  the  terms 
.used  by  the  Legislature  must  be  resolved  in  favor  of  the 
l)ublic.^ 

.  '  House  /•.  House,  o  U.  cV:  J.  1^'):  Keller  r.  State.  1 1  Md.  "i'Jo;  Pai- 
kiusoii  r.  Stale,  14  lb.  1^4:  Woil.l  /••  State,  50  lb.  4'.»;  Stewart  r. 
State.  62  lb.  413. 

-  Bisliop  Stat.  C'r.,  2  ed.,  'i  82:  Keller  r.  State,  stqu'o;  State  v.  Popp. 
45  Mil.  4:32. 

'  Bishop  Stat.  Cr.,  2  ed..  <;i!  245-246  b:  Stewart  r.  State.  >s'/(/»m. 

'  Miuturn  r.  Larue.  23  How.  435. 


•10  CRIMINAL    LA.W. 

The  Board  of  Police  Commissioners  of  Baltimore  City  are 
authorized,'  whenever,  in  their  judgment,  the  public  place 
and  tranquility  shall  require  it,  to  order  all  bar-rooms  and 
drinking;  saloons  to  be  closed  temporarily,  and  it  is  made  a 
misdemeanor  to  disobey  such  order  ''during  such  period 
as  the  said  Board  shall  so  forbid."  This  statute  is  con- 
strued to  mean,  that  these  orders  shall  operate  not  only  for 
a  short,  but  for  a  definite  interval  or  portion  of  time,  to  be 
specified  on  their  face,  and  that  an  order  which,  by  its  terms, 
is  to  operate  "until  further  notice"  is  unauthorized  and 
void.- 

Under  its  charter  the  corporation  of  the  Mayor  and  City 
Council  of  Baltimore  has  power  ''to  pass  ordinances  to  pre- 
serve the  health  of  the  City,  to  prevent  and  remove  nuisances, 
and  to  prevent  the  introduction  of  contagions  diseases 
within  the  City  and  within  three  miles  of  the  same,  and 
may  regulate  the  places  for  manufacturing  soap  and  candles 
and  the  erecting  of  slaughter-honses  and  distilleries  and 
where  every  other  offensive  trade  is  carried  on."  An  ordi- 
nance was  passed,  under  the  supposed  sanction  of  the  au- 
thority thus  conferred,  forbidding  the  erection  or  operation 
within  the  corporate  limits  of  any  kiln  for  tlie  purpose  of 
burning  oyster  shells  or  stone  lime,  but  was  held  void  be- 
cause the  power  conferred  by  the  statute  could  not  be  taken 
to  authorize  the  extra-judicial  condemnation  and  destruc- 
tion of  that  as  a  nuisance  which,  in  its  nature,  situation  or 
use,  was  not  or  might  not  be  such.  The  burning"  of  lime  is 
not  a  nuisance  per  se,  irrespective  of  local  surroundings, 
and  the  corporation  can  not  make  lime-kilns  nuisances  by 
simply  declaring  them  so.' 

§  40. — Repeal  of  Statutes. — Eepeals  of  statutes  are 
either  express  or  bj'  implication.  The  law  does  not  favor 
repeals  by  implication,  and  the  intention  to  repeal  must  be 
plainly  deducible  from  the  language  of  the  Legislature  or 
follow  from  the  provision  of  the  later  statute  as  an  iuevit- 

'  Code  P.  L.  L.,  art.  4.  sec.  734. 
2  State  V.  Strauss,  49  Md.  2^8. 
'Code  P.  L.  L.,  ait.  4.  sec.  378. 
■'State  r.  Mott,  61  Md.  297. 


STATITOKY    CONS'l'IflM  "II<»N.  41 

able  coiisefiiu'iice.*  No  statute,  exeejit  l>.v  exiness  words 
or  aftinnative  iinplicatioii,  operates  as  a  i<*iieal  of  tlie  prior 
law,  wlietlier  statutory'  or  ooinnioii.'  TIk*  coiitlict  should 
be  irreconcilable' 

Wliere  there  are  two  acts  on  the  same  subject,  the  rule  is, 
to  give  effect  to  both,  if  i)ossible.  But,  if  the  two  are  re[>ug- 
uaut  in  any  of  their  i)rovisions,  the  latter  act,  without  any 
express  repealinji'  clause,  operates,  to  the  extent  of  such 
repugnancy,  as  a  repeal,  or  an  abroj^ation,  of  the  i'ornier.' 

Where  the  Legislature  makes  a  revision  of  paiticular 
statutes  and  passes  a  general  statute  upon  the  subject,  an<l 
it  is  evident,  from  the  general  framework  of  the  statute  and 
the  manner  in  which  the  subject-matter  is  dealt  with,  that 
the  Legislature  intended  such  general  statute  to  be  a  com- 
plete system  of  legislation  in  regard  to  the  matter,  the 
statute  thus  passed  must  be  considered  as  a  substitute  for 
all  i)rior  laws  on  the  subject,  and  the  provisions  of  such 
l»rior  laws  as  are  not  embraced  by  the  latter  statute  are 
thereby  repealed.  • 

VVheie  diflerent  provisions  of  the  same  act  contlict,  and 
there  is  a  i>lain  inconsistency  and  repugnancy  among  them, 
so  that  the  legislative  intent  can  not  be  ascertained,  all 
must  be  held  invalid  '■ 

In  cases  of  irreconcilable  conliict  between  i)rovisions  of 
the  local  laws  and  general  laws  enacted  at  the  same  time, 
by  their  simultaneous  adoption  as  ])art  of  the  Code  of 
Public  Laws,  the  local  law  prevails.' 

'  Bishop  Stat.  (Jr.,  '-i  ed..  i  \')'>. 

-lb.,  'i  107. 

■'lb..  ^  1(50;  State  r.  N.  C.  R.  R.,  44  Md.  131.  UiT:  Willing  r.  Boz- 
niau,  i)2  lb.  44,(51:  Mayor  c  Magiuder,  34  lb.  3S1;  Suowden  r. 
State,  ()U  lb. 

'  Bishup  Stat.  Or..  2  ed..  iJ  Ki."")-.  Davis  r.  Slate.  7  Md.  I.')::  State  r. 
Yewell.  b^  lb.  I'JO. 

'Turner  r.  State,  o")  Md.  '.240,  2C0:  U.  S.  c  Tyuen.  11  Wall.  .ss.  9'.?. 

"Pierce  c.  State.  (53  :Md.  ay-2. 

■Code.  art.  1,  sec.  11;  Alexander  v.  Mavor.  .03  Md.  1(J0,  104. 


CHAPTEli    Y. 

PRELTMINAEY    PllOCEEDINaS. 

§  47. — The  Arrest — Conservators  of  the  Peace. — The 
duty  aucl  power  to  make  arrest,  while  not,  as  will  be  seen 
in  the  next  followino-  section,  absolutely  confinerl  to  offi- 
cial persons,  are  ordinarily  vested  in  certain  officials  of 
various  grades  and  designations,  collectively  known  as 
peace  officers,  or  conservators  of  the  peace.^  The  officers 
ordinarily  charged  with  the  arrest  of  offenders  in  this 
State  are  sheriffs,  constables,  policemen  and  town  bailiffs. 
The  duty  and  authority  of  conservators  of  the  peace  vest 
in  all  sheriffs  and  constables  at  common  law  and  are 
expressly  declared  in  the  State  Constitution.-  There  is 
also  to  be  found  in  the  Code  of  Public  General  Laws  a 
special  enumeration  of  certain  police  duties  of  consta- 
bles.' Policemen  and  town  bailiffs  possess  such  of  the 
police  powers  of  constables  as  are  vested  in  them  by  vari- 
ous local  statutes.  For  the  City  of  Baltimoie  a  police 
force,  under  the  government  of  the  Board  of  Police  Com- 
missioners for  Baltimore  City,  is  provided,  clothed  with 
extensive  powers.*  Provision  is  also  made  for  the  appoint- 
ment by  the  Grovernor  of  policemen  for  the  protection  of 
the  property  of  corporations  owning  or  using  any  railroad, 
steamboat,  canal,  furnace,  colliery  or  rolling  mill  in  this 
State  aud  for  the  preservation  of  peace  and  good  order  on 
their  respective  premises,  railroad  trains  or  steamboats;^ 
and  agents,  officers  and  representatives  of  incorporated 
institutions,  societies  or  bodies  for  the  care,  custody  or 
protection  of  children  or  minors  having  in  their  custody. 


'  Stephen  Hiiit.  Crini.  L.  Ibo. 
■^  Art.  4.  sees.  42,  44. 
•''  Art.  20.  sees.  25-30. 

'Code  P.  L.I...  art.  4,  sees.  728-756:  Mitchell  v.  Lemon,  34  Md.  176: 
Roddy  V.  Finnegan,  43  lb.  490. 
•'  Code.  art.  23,  sees.  2S8-2i)3. 


PRELIMINARY     I'KOCKEDlNCrS.  43 

care  or  peisonal  cliar^iic  aiiv  iiiiiior,  (M'  person  mider  tweuts- 
one  yeais  of  a^c,  are  by  statute  vesteil  with  all  tlie  privi- 
leges and  authority  of  conservators  of  the  peace,  and  i)er- 
sons  interfering  witli  or  ol)structing  them  aie  guilty  of  a 
misdemeanor.'  Conductors  of  railroad  trains  may  arrest 
tliieves  and  pickpockets. - 

§  48. — Causes  and  Manner  of  the  Arrest. — All  persons 
who  are  present  when  a  felony  is  committed,  or  a  dangerous 
wound  given,  which,  if  the  wounded  person  dies,  will  amount 
to  felony,  are  authorized,  and  even  obliged,  to  arrest  the 
ortVnder.^  It  is  the  duty  of  private  persons  as  well  as 
otiicers  to  supi)ress,  by  force,  if  necessary,  riots,  affrays 
and  breaches  of  the  peace.  Any  one  may  lawfully  lay 
hold  of  any  other  person  wliom  he  shall  see  on  the  i)oint 
of  committing  a  Treason  or  felony,  or  doing  an  act  that 
will  manifestly  endanger  the  life  or  person  of  anotlier,  and 
may  detain  him  nntil  it  may  reasonably  be  presumed  that 
he  has  changed  his  purpose.  Thus,  any  one  may  justify 
breaking  and  entering  a  party's  house  and  imprisoning 
liim,  to  prevent  him  from  murdering  his  wife,  who  cries 
out  for  assistance.'  Where  a  felony  has  been  actually 
committed,  a  [irivate  person,  acting  in  good  faith  and  ujjon 
reasonable  and  probable  ground  of  suspicion  is  justified  in 
apprehending,  without  a  warrant,  the  suspected  person, 
in  order  to  carry  hiuj  before  a  magistrate."' 

An  officer  is  authorized  and  in  duty  bound  to  arrest  any 
one  without  a  warrant  who  commits  an  offense,  of  what- 
ever grade,  in  his  presence,"^  and  he  may  arrest  any  one 
whom  he  reasoiuibly  susi)ects  of  having  committed  a  felony, 
whether  a  felony  lias  actually  been  committed  or  not,  and 
whether  acting  on  his  own  knowledge  or  facts  connnuni- 
cated  by  others;  but,  if  the  offense  does  not  amount  to 
felony,  he  is  not  justified  in  making  the  arrest  without  a 
warrant,  when  such  otfense  has  not  been  committed  in  his 
presence,  or  view.     When,   however,   a  warrant  has  been 


'  Code.  art.  27,  sec.  208. 

-Code,  art.  27,  sec.  2.J6. 

^  1  Bish.  Cr.  Pioc.  ?.  165. 

•*  Handcock  r.  Baker,  2  Bos.  &  P.  260. 

•Ledwith  r.  Catchpole,  Cald.  291:  Mure  r.  Kaye,  4  Taunt.  'S-i. 

"Mitchell  r.  Lemou.  34  Md.  176:  Roddy  r.  Finuegan,  43  lb.  490. 


44  CKTMINAL    LAAV. 

regularly  issued,  an  officer  to  whom  it  is  directed  or  cou- 
tided  is  free  from  all  liability  iu  making  the  arrest,  even 
thoiigli  the  prosecution  be  a  malicious  one;  but  it  is  other- 
wise when  the  warrant  is  glaringly  and  palpably  defec- 
tive.^ A  warrant  may  be  directed  to  a  private  person, 
but  he  is  not  comi)ellable  to  execute  it.-  Private  persons 
must  assist  an  ofBcer  in  making  an  arrest  when  called 
upon.^ 

§  41).  —  Pursuit  of  Offenders.  —  Breaking  Doors. — 
Where  a  felony  has  been  actually  committed,  or  a  danger- 
ous wound  given,  a  peace  officer  may  justify  breaking  an 
entrance  door  to  apprehend  the  ofi'ender,  without  a  war- 
rant ;  but  in  cases  of  misdemeanors  and  breach  of  the  peace 
a  warrant  is  required.  It  is  likewise  said,  that  mere  sus- 
picion of  felony  will  not  justify  him  in  proceeding  to  this 
extremity,  unless  he  be  armed  with  a  warrant.^ 

If  there  be  an  affray  in  a  house,  and  manslaughter  or 
bloodshed  is  likely  to  ensue,  a  peace  officer,  having  notice 
of  it  and  demanding  entrance  and  being  refused,  and  the 
affray  continuing,  jnay  break  open  the  doors  to  keep  the 
peace.  ■■ 

If  the  officer  has  once  entered  by  the  outer  door,  being 
oi)en,  he  may  break  open  the  inner  doors."  But  he  should 
first  demand  admittance,  making  known  his}Hnpose.'  Yet 
when,  as  in  cases  of  fresh  pursuit,  the  inmates  are  aware 
of  his  object,  demand  is  not  necessary.*     A  private  person 


'Lewin  r.  Uzuber,  6~>  Md.  341. 

"1  Hale,  581. 

■'State  V.  Mayhew,  2  G.  487,  501;  McMahan  v.  Greeu,  ;54  Vt.  69; 
Coleman  v.  State,  63  Ala.  93;  Coyles  r.  Hurtin,  10  Johns.  85;  Com- 
fort r.  Comm.,  5  Whart.  437;  State  r.  Shaw,  3  Ired.  20;  State  r. 
Halley,  2  Strobh.  S.  C.  73;  State  /•.  Deniston,  6  Biackf.  277;  Mitchell 
V.  State,  12  Ark.  50;  S.  C,  54  Am.  Dec.  253. 

^Fost.  320,  321;  Hawk.  P.  C.  b.  2,  c.  14,  s.  7.  Cunlni,  1  Bish.  Cr. 
Proc.  ii  196.  n.  6. 

"2  Hale,  95;  Hawk.  P.  C.  b.  2,  c.  14.  s.  5;  1  Chitty  Cr.  L.  52.  3;  1 
Bish.  Cr.  Proc.  H97. 

''  1  Hale,  458. 

'  Lannock  r.  Brown.  2  B.  &  Aid.  592;  Ratcliffe  /•.  Burton,  3  B.  & 
P.  223. 

"  Allen  r.  Martin,  10  Wend.  300;  S.  C,  25  Am.  Dec.  564. 


I'KKLnilNAKY     l'K(>< 'KKDINCS.  45 

in  irt'sli    pursuit   may  lorec  an  cntiance   to  a  house  under 
eircunistanees  which  authoiize  him  to  make  an  arrest.' 

An  escape  by  a  prisoner  hiwtiilly  arrested  warrants  the 
retaking;-  ofhini  on  Iresh  puisnit  and  the  breaking  of  doors 
for  tliat  pnr[)ose.  " 

§  ~>{). — Hue  and  Cry. —  Hue  and  cry  is  the  old  common - 
hiw  process  of  pursnin*;'  felons  and  such  as  have  danger- 
ously wounded  others  from  town  to  town  until  taken.  The 
hue  and  cry  may  be  raised  by  constables,  private  persons 
or  both.  The  constable  and  his  assistants  have  the  same 
powers,  protection  and  indemnification  as  if  acting  under 
a  warrant  from  a  magistrate.  Private  persons  who  Join 
are  justified,  even  though  it  should  transpire  that  no  felony 
has  been  committed.  To  raise  the  hue  and  cry  without 
cause  is  a  misdemeanor.  British  statutes  in  relation  to 
this  process  are  still  regarded  as  being  in  force  in  this 
State.-' 

^  51. — Time  of  Arrest. — The  arrest  may  be  made  at 
any  time,  at  night  as  well  as  during  daytime,  at  what 
ever  hour  the  officer  having  the  warrant  deems  expe- 
dient,* but  no  warrant  may  be  executed  or  served  on  Sun- 
day, except  in  cases  of  treason,  felony  or  breach  of  the 
X^eace. 

§  52. — Exemptions  from  Arrest. — The  Senators  and 
Eepreseutatives  of  the  United  States  are  in  all  cases, 
except  treason,  felony  and  breach  of  the  peace,  privileged 
from  arrest  during  their  attendance  at  the  session  of  their 
respective  houses  and  in  going  to  and  returning  from  the 
same.*^ 

Foreign  ambassadors,  ministers  and  representatives  are 
independent  of  the  ordinary  criminal  jurisdiction  of  the 
countrv  to  which  sent  and  not  liable  to  arrest  or  other 


'  4  Bla.  Coram.  293. 

-1  Chitty  Cr.  L.  61:  Comni.  r.  McGahey.  11  Gray,  194:  Cahill  r. 
People,  106  111.  6'21. 

'  13  E.  1,  Stat.  -\  ch.  4;  7  K.  2.  ch.  0:  Alexauder  Br.  Stat.  154,  190. 
See  also  1  Hale,  4b9,  490:  1  Hawk.  P.  C.  ch.  28,  s.  U:  Post.  309:  1 
East  P.  C.  ch.  5,  s.  67. 

^  1  Bishop  Cr.  Proc.  'i  207. 

^29  Car.  2,  ch.  7:  Alexander  Br.  Stat.  562. 

'•Coust.  U.  S..  art.  1.  sec.  6:  1  Story  Const.  *.  865. 


46  CRIMINAL    LAW. 

criminal  ])iocess.     If  guilty  of  grave  crimes,  they  must  be 
remaiKled  home  to  their  sovereign  for  judgment.' 

Jurymen  and  witnesses,  during  their  attendance  at  court, 
are  privileged  from  an  arrest;  but  it  is  the  privilege  of  the 
court  and  not  of  the  party. ^ 

§  53. — TJie  Preliminary  Hearing. — When  an  offender 
has  been  arrested,  he  should  i)roin[)tly  be  carried  before  the 
proper  officer  for  examination  upon  the  charge.  The  power 
to  issue  warrants  and  to  conduct  the  examination  of  offend- 
ers is  vested  in  all  judges  of  superior  courts,  who,  by  virtue 
of  their  offices,  are  conservators  of  the  peace  throughout 
the  State ,^  and  justices  of  the  peace,*  the  latter  being  the 
officials  before  whom  the  preliminary  examination  is  ordi- 
narily had  in  this  State.  The  Mayor  of  Baltimore,  in 
virtue  of  his  office,  has  all  the  jurisdiction  and  powers  of  a 
justice  of  the  peace,  except  as  to  the  recovery  of  debts,"  and 
similar  powers  are  conferred  upon  mayors,  town  burgesses 
and  the  like  officials  by  various  local  laws  in  other  portions 
of  the  State. 

While  arrests  may  and  should  be  made  without  a  war- 
rant in  cases  of  breach  of  the  peace,  offenses  committed 
within  view  of  the  officer  and  where  there  is  danger  of  the 
escape  of  a  felon,  yet,  unless  under  exceptional  circum- 
stances of  this  kind,  an  arrest  should  be  ui:>on  complaint,  or 
information,  under  oath  and  warrant  issued  thereupon."' 
And  magistrates  are  not  bound  to  issue  a  warrant,  even 
though  there  be  a  ])ositive  charge  on  oath;  but  it  is  their 
duty  well  to  consider  all  the  circumstances  sworn  to  and 
not  to  grant  any  warrant  groundlessly  or  maliciously,  with- 
out such  a  probable  cause  as  might  induce  a  discreet  and 


'  Woolsey  Int.  L.  %  92  e,  96;  U.  S.  v.  Benner,  1  Baldw.  234-.  Rev. 
Stats.  U.  S.  H  4062-4065. 

-  Brookes  r.  Chesley,  4  H.  &  McH.  295. 

» Const,  art.  4,  sec.  6:  Exp.  O'Neill,  8  Md.  227;  In  re  Glenn,  54  lb. 
572:  Parrish  v.  State,  14  lb.  238,  246. 

'  Const,  art.  4,  sec.  42. 

^Code  P.  L.  L.  art.  4,  sec.  11. 

•*  1  Chitty  Cr.  L.  83.  But  see,  as  to  arrests  of  thieves  and  pick- 
])0ckets.  Code,  art.  27,  sees.  255,  256;  as  to  arrests,  in  Baltimore  City, 
of  paupers,  habitual  beggars,  vagrants,  vagabonds  or  disorderly 
persons.  Code  P.  L.  L.,  art.  4,  sec.  880. 


PRKLIMINARY    PKOCEEDINCiS.  17 

iTiii)iirtial  iiinii  to  sns]i(H't  tlic  i)arty  to  be  /guilty.'  Tin-  lol- 
lowiiij;"  provision  of  tlio  iJeclaration  of  Itiylits  slioiild  Iw 
noted  ill  tliis  connection: 

That  all  warrants,  without  oath  or  atlirniatioii,  to 
search  suspected  i)laces,   or  to  seize   any  jierson  or 
property,  are  grievous  and  oiipressive;  and  all  gen- 
eral warrants  to  search  suspected  jdaces,  ortoapjire- 
hend    suspected    jiersons,    without    naniing   or    de- 
scribing the  place  or  the  i)erson  in  special,  are  illegal 
and  ought  not  to  be  granted. " 
In  the  City  of  Baltimore  certain  justices  of  the  peace  are 
especially  designated  to  sit  at  the  station  houses,  to  hear 
all  charges  made  against  any  person   for  any  criminal  of- 
fense, and  all  criminal  writs  issued  by  any  Justice  of  the 
I)eace  must  be  made  returnable  before  one  of  the  justices  so 
designated  to  sit  at  station  houses,  and  it  is  the  duty  of  all 
l)oli(;e  otiicers  and  constables  making  arrests  for  crime  to 
take  the  person  arrested  to  the  nearest  station  house,  and 
the  justice  of  the  peace  sitting  at  such  station  house  shall 
take  jurisdiction  of  the  case.^ 

It  is  the  duty  of  the  ofticer  to  bring  the  party  accused, 
within  a  reasonable  time  after  the  arrest,  belore  the  pro[)er 
magistrate,  in  order  that  he  may  be  examined,  and,  after 
due  investigation,  discharged,  bailed  or  committed.  It 
then  l)ecomes  the  duty  of  the  magistrate  to  take  and  com- 
plet(»  the  examination  of  all  concerned,  and  to  discharge  or 
commit  the  individual  suspected  as  soon  as  the  nature  of 
the  case  will  [termit;  but  he  is  allowed  a  reasonable  time 
for  this  i)urpose  before  he  makes  his  tinal  decision. ' 

§  54. — Discharge  of  Prisoner. —  If.  ui>on  the  examina- 
tion of  the  luisoner,  it  appears  that  no  crime  was  committed 
or  that  the  suspicion  entertained  against  the  {)risoner  was 
groundless,  he  should  be  discharged.  \J\i\vssii  ]>riiti<(  foci e 
case  is  made  out  against  the  i)risoner,  by  witnesses  entitled 
to  a  reasonable  degree  of  credit,  the  magistrate  should  not 
commit  or  hold  him  to  bail. 


'  1  Chitty  Cr.  L.  34. 

-  Art.  26.     SeealsoConst.  U..  S.,  Amendment4:  Story  ('oust.  ?.  1902. 

■'Code  P.  L.  L.  iirt.  4,  sees.  614-G29. 

'  1  fhitty  Cr.  L.  72,  73. 


4S  CKIMINAL    LAW. 

§  ."iS. — Bail. — The  iiia<iistrate,  liaviiig  beard  the  exanii- 
uations  and  ascertained  that  the  party  accused  is  not  en- 
titled to  l>o  eonii)letely  discharged,  is  next  to  determine 
whether  he  sliall  bail  or  commit  him.  But,  it  should  be 
remembered,  that  the  ])risoner  may  always  waive  the  pre- 
liminary examination  and  at  once  be  committed  or  bailed. 

Bail  is  the  delivery  or  bailment  of  a  person  to  his  sureties, 
upon  their  giving",  generally  together  with  himself,  sufti- 
cient  security  for  his  ai)pearance,  he  being  supposed  to 
continue  in  their  friendly  custody  instead  of  going  to  prison.^ 
The  sureties  are  his  kee])ers  and  may  reseize  to  bring  him 
in,  if  they  fear  his  escape,  and  take  him  before  the  court  or 
magistrate  by  whom  he  may  be  committed,  and  thus  the 
bail  be  discharged;  but  he  is  at  liberty  to  find  new  sureties.- 

The  manner  of  taking  bail  in  this  State  is  by  recog- 
nizance, entered  into  before  the  court  or  magistrate,  con- 
ditioned that  the  accused  shall  appear  at  the  ])lace  of  trial 
to  answer  the  charge  against  him;  and,  wlien  forleiture  is 
declared  and  entered  by  the  court,  it  becomes  a  judgment 
enforcible  by  execution.^  When  the  accused  is  present,  it 
is  proper  that  he  join  in  the  recognizance;  but,  when  the 
accused  is  an  infant,  a  married  woman,  or  sick  in  jail,  the 
recognizance  is  taken  from  the  surety  alone.*  A  recog- 
nizance to  appear  before  a  court,  having  no  existence  and 
designating  no  fixed  day  is  absolutely  void;^  but  mere  in- 
formalities or  irregularities  in  the  recognizance  can  not  be 
availed  of  upon  motion  to  quash  the  execution. "^ 


'  1  Bla.  Comm.    297. 

''2  Hale,  124;  Code  P.  L.  L.  art.  4,  sec.  200. 

•'Schultze  /•.  State,  43  Md.  295. 

'lb. 

•■'Coleman  v.  State,  10  Md.  168. 

''Shultze  V.  State,  supra;  Parrish  r.  State,  14  Md.  238. 

As  to  procedure  where  recoguizance  is  forfeited,  see  Code,  art.  75, 
sees.  18,  19. 

If  a  party  is  brought  before  a  court  ou  habeas  corpus,  and  it  appears 
that  the  offense  was  committed  in  another  county,  he  raaj'  be  re- 
cognized to  appear  before  the  court  having  Jurisdiction  of  the  offense. 
Parrish  v.  State,  supra. 

Where  a  judgment  rendered  in  favor  of  the  traverser  upon  de- 
murrer to  the  indictment  is  reversed  on  writ  of  error,  and  the  case 


PRELnriNAKY    PKOf'EEDlNGS.  49 

In  criminal  (;asi*s  the  prisonor  may  of  li^lit  j;ivo  bail  lor 
liis  a])p('aiaiic('  to  answer  the  charge  or  indictment,  except 
in  cai)ital  <»llenscs  where  the  proof  is  evident  or  the  pre- 
sumption great.  In  these  eases  bail  should  be  refused 
where  a  Judge  would  sustain  a  capital  conviction,  if  pro- 
nounced by  a  jury,  on  su(;h  evidence  of  guilt  as  is  exhibited 
on  the  hearing  lor  bail.  If  the  evidence  is  clear  and  strong, 
leading  a  well-guarded  and  dispnssiiuiate  judgment  to  the 
conclusion  that  the  offense  has  been  committed,  that  the 
accused  is  the  guilty  agent,  and  that  he  would  probably  be 
punished  capitally,  if  the  law  be  administered,  bail  is  not  a 
matter  of  right.' 

A  justice  of  the  peace,  or  committing  magistrate,  may 
not  in  all  cases  bail  where  judges  of  superior  courts  may 
and  should  admit  the  accused  party  to  bail.  ►Statutes  3  E. 
1,  ch.  14,^  1  K.  3,  ch.  3,^  3  II.  7,  ch.  3,*  1  &  2  P.  &  M.,  ch. 
13,''  and  2  &  3  P.  &  M.,  ch.  10,"  relating  to  examinations 
before  magistrates  and  bail,  are  in  force  in  Maryland,  and 
are  commonly  cited  as  containing  the  regulation  to  be  ob- 
served in  such  matters.  IJut  a  number  of  their  provisions 
are  clearly  iniipi)licable  under  the  mode  of  (uiminal  pro- 
cedure established  in  this  State  and  are  not  now,  if  ever 
they  were,  followed  in  i)ractice.  According  to  these 
statutes  the  list  of  cases  in  which  magistrates  may  not  ad- 
mit to  bail  would  seem  to  be  considerable.  The  doctrine 
u[)on  this  subject,  as  founded  in  the  established  practice  in 
this  State,  may  be  stated  as  follows:  Justices  of  the  peace 
cannot  bail  in  cases  of  treason,  murder  and  other  cai)ital 
ollenses;  neither  can  they  bail  in  cases  of  manslaughter, 
but  in  cases  of  killing  by   mere  misadventure  or  in  clear 


remauded,  the  recognizance  can  not  be  forfeited-  if  the  party  fails  to 
reappear.     State  '•.  Minpliy,  10  G.  &  J.  36o. 

Enlistment  of  tlie  principal  in  tlie  army  of  the  United  States  does 
not  discharge  the  recognizance.     State  c.  Reany.  13  Md.  230,  236. 

'2  Encyclop.  Law,  <>-9. 

*  Alexander  Br.  St.  o.">. 

•'lb.  250. 

■•lb.  2.-)3. 

»ib.  mo. 

«lb.  374. 


50  CETMINAL    LAW. 

self-defense,  a  justice  may  bail/  yet  the  responsibility  is 
not,  in  practice,  assumed  by  justices.  The  same  remark 
will  apply  to  the  case  of  persons  arrested  upon  light 
suspicion  of  homicide.  Where  a  dangerous  wound  has 
been  given,  justices  may  bail,  but  are  advised  to  observe 
great  caution."  In  other  cases  justices  should  bail  as  a 
matter  of  right,  fixing  the  penalty  with  regard  to  the  gravity 
of  the  charge  and  the  weight  of  suspicion  attaching  to  the 
accused,  and  having  regard  to  the  provision  of  the  Consti- 
tution, "that  excessive  bail  ought  not  to  be  required.'"  If 
the  justice  concludes  not  to  admit  to  bail,  or  if  the  accused 
is  unable  to  furnish  the  required  security,  the  party  must 
be  committed  for  the  action  of  the  proper  court. ^ 

§  50. — Statutory  Provisions  in  Relation  to  Bail. — 
Bail  may  be  taken  by  a  court  or  judge  upon  habeas  corpus, 
the  recognizances  to  be  transmitted  to  the  court  having 
jurisdiction  over  the  offense.'' 

The  sheriff  or  his  deputy,  when  he  arrests  a  person  on  a 
writ  for  any  criminal  offense  not  punishable  by  confine- 
ment in  the  Penitentiary,  may  take  a  bail-bond  from  the 
person  so  arrested,  with  security  to  be  by  him  apj)roved 
and  in  a  penalty  not  exceeding  three  hundred  dollars, 
except  in  those  cases  where  a  specific  fine  or  penalty  is 
prescribed  for  the  commission  of  the  offense,  in  which  cases 
the  penalty  of  the  bond  shall  be  the  highest  penalty  or  fine 
fixed  by  the  law,  with  condition  tluit  the  person  so  arrested 
shall  ap])ear  in  court  on  the  day  the  said  writ  is  returnable, 
and  attend  the  court  from  day  to  day,  and  not  depart 
therefrom  without  the  leave  of  the  said  court;  and,  if  the 
I)erson  so  arrested  cannot  give  bail-bond,  he  shall  be 
taken  beforea  justice  of  the  peace,  to  be  dealt  with  accord- 
ing to  law.  Such  bail-bond  shall  be  taken  in  the  name  of 
the  State,  and  shall  be  returned  to  the  court  to  which  such 
writ  is  returnable,  on  the  first  da}'  thereof.* 

>  1  Chitty  Cr.  L.  95. 
''Hawk.  P.  C.  b.  1,  ch.  63,  sec.  19. 
^'Dec.  of  R.  art.  2j. 

■•The  commitment  should  be  under  seal.     Somervell  v.  Hunt,  3 
H.  &  McH.  113. 
*Code,  art.  42,  sec.  11:  Parrish  v.  State,  14  Md.  238, 
«  Code,  art.  87,  sec.-^.  7,  8. 


PllELIMINARY    PROCEEDINGS.  51 

Each  of  the  circuit  judiLCos  lor  the  counties  or  judicial 
circuits  may  make  orders,  in  recess  of  their  several  couits, 
in  cases  of  law,  and  may  reciuire  in  writing  the  original 
papers  on  any  case,  or  abstracts  and  trans<nipts,  to  be 
l)roduced  before  them,  or  either  of  them,  wherever  they  or 
either  of  them  may  be,  lur  the  purpose  of  passing-  such 
order,  and  in  all  (;rimiual  cases  wherein  the  accused  has 
been  allowed  to  give  bail:  but,  if  the  court  shall  adjourn 
before  he  has  secured  the  bail,  the  clerk  of  the  court  may 
take  the  bail,  on  its  being  directed  by  order  of  the  court 
before  adjournment,  or  of  one  of  the  judges  after  adjourn- 
ment, fixing  the  amount  thereof;  but  the  clerk  shall  ac^cept 
no  security  without  the  oath  or  ;ittirmation  of  tiie  person 
offering  himself  as  security,  tliat  he  or  she  is  worth  the 
amount  of  the  bail  in  real  or  personal  estate,  exclusive  of 
his  or  her  right  to  exemption;  nor  unless  the  clerk  shall 
be  satisfied  of  the  truth  of  such  statement  on  oath  or 
affirmation;  and,  whenever  a  party  is  arrested  on  indict- 
ment in  any  of  the  Circuit  Courts  and  is  imprisoned  during 
the  recess  of  the  court,  any  judge  thereof,  if  it  be  a  bailable 
case,  may,  by  his  order  in  writing,  fix  the  bail  and  direct 
the  clerk  to  take  the  same,  with  security  or  securities, 
who  shall  justify  on  oath  or  affirmation  as  herein liefore 
provided,  and  no  security  shall  be  taken  whom  the  clerk  is 
not  fully  satisfied  to  be  worth  the  amount  sworn  to/ 

Whenever  any  recognizance  taken  for  the  appearance  of 
any  peison  to  answer,  or  of  any  person  to  testify,  shall  be 
forfeited  in  any  court  of  record,  the  State's  attorney  may 
order  a  writ  of  execution  to  be  issued  for  the  sum  or  sums 
thereon  due." 

Whenever  any  execution  has  issued  on  a  forfeited  recog- 
ni/.an(;e  against  a  i)erson  for  not  appearing  according  to 
the  tenor  of  the  recognizance,  such  i)erson,  on  the  return 
of  the  execution,  may  appear  and  plead  in  discharge  thereof 


»  Code,  art.  26,  sec.  37;  Mayor  r-  Tiddy,  63  Md.  't\4. 

-Code.  art.  75,  sec.  IS. 

Oue  who.  ou  bail,  has  forfeited  his  recognizance,  is  liable,  even 
after  it  is  {)aid,  ti>  be  rearrested  and  tried  for  his  crime.  Exp.  Jlil- 
burn,  y  Pet.  704.  Mere  iusutiicieucy  of  bail,  liowever.  without  fraud, 
does  not  constitute  an  escape  justifying  a  rearrest .  lugi  am  v.  State, 
27  Ala.  17. 


52  CRIMINAL    LAW. 

any  plea  whicli  would  have  been  good  and  sufficient  to  a 
scire  faciaH  on  said  recognizance,  if  a  Hcire  facias  had 
issued  thereon;  and,  upon  such  plea  being  determined  in 
favor  of  the  person  pleading  the  same,  he  shall  be  dis- 
charged from  the  said  forfeiture;  provided,  such  person 
shall  not  be  discharged  from  such  execution  until  the  trial 
of  the  plea,  unless  he  shall  i)ay  and  satisfy  the  execution, 
or  give  bonds,  payable  to  the  State,  before  the  sheriff, 
or  enter  into  recognizance  in  court,  with  one  good  and 
sufficient  security,  in  double  the  forfeiture  and  costs  due 
upon  such  execution,  conditioned  to  api)ear  and  plead  in 
.discharge  of  the  said  execution,  and  to  abide  by  and  fulfil 
the  judgment  of  the  court  thereu])on/ 

The  Governor  may  remit  the  whole  or  any  ])art  of  any 
recognizance  which  may  be  forfeited,  provided  the  judge 
of  the  court  in  which  such  forfeiture  took  place  shall  recom- 
mend the  remission  of  the  whole  or  some  part  thereof.- 

If  any  security  in  any  recognizance  shall  request  to 
deliver  U])  the  prin(;ipal,  the  Criminal  Court  of  Baltimore, 
or  the  judge  thereof  in  recess,  may  accept  such  surrender 
and  may  require  and  take  other  recognizance,  or  commit 
the  principal  to  jail  until  he  gives  such  security  as  the  law 
requires.^ 

§  57. — Recognizance  of  ^A(^itnesses. — If  the  magistrate 
determines  to  hold  the  accused  to  appear  at  court,  he 
thereujion  commits  him  and  the  witnesses,  or  takes  their 
several  recognizances,  as  the  case  may  require.* 

Where  a  witness  against  any  person  accused  of  a  crime 
cannot  find  security  for  his  appearance  to  testify  against 
the  person  so  accused  and  for  want  of  such  security  shall 
be  committed  to  prison,  the  county  where  the  prosecution 
shall  be  carried  on  shall  be  chargeable  with  and  pay  the 
imprisonment  fees  of  such  witness,  and  the  county  com- 
missioners, or  the  Mayor  and  City  Council  of  Baltimore 
shall  levy  the  same,  from  time  to  time,  as  the  case  may 
require.^ 

'Code,  art.  75,  sec.  19:  Schultze  r.  State,  43  Md.  2Q'>. 

^  Code,  art.  41,  sec  8. 

='Code  P.  L.  L.  art.  4,  sec.  200. 

*  1  Bishop  Cr.  Proc.  ?,  234  b. 

^Code,  art.  3o,  sec.  -30. 


PKEHMINARV    PROCEEDINGS.  53 

§  oS.— Transmitting  Case  to  Court. — All  ooinniifincnts 
and  recojiiiizaiices  for  ott'tMise.s  coiiiiDittcMl  within  th<*  City 
of  Baltimore  aro  to  be  returnod,  from  time  to  time,  by  the 
committiiii;-  magistrates  to  the  Criminal  Court,  and  shall 
be  lod<;ed  with  the  clerk  of  said  Court  on  the  day  next 
preceding  the  day  apiminted  for  holding  the  said  Court.' 
In  the  counties,  recognizances  and  commitments  must  be 
returned  to  the  (Circuit  Courts.  When  the  magistrate  has 
transmitti'd  the   papers  to  court,  his   functions  are  ended. 

^  r>!>. — Referring  Case  to  Grand  Jury. — Summary  Pro- 
ceeding in  Baltimore. — When  the  recognizance  or  com- 
mitment, as  the  case  may  be,  has  been  filed  in  court,  the 
next  stej)  in  the  ordinary  course  of  procedure  is  to  refer 
the  matter  to  the  grand  jury  for  its  action.  In  tlie  City  of 
Baltimore,  however,  persons  who  have  been  committed  by 
Justices  of  the  peace  for  want  of  bail  for  trial  on  charges  of 
assault  and  l)attery,  keeping  a  disorderly  liouse,  violations 
of  the  article  of  the  Code  relating  to  Licenses,  or  for  any 
other  small  offenses  for  which  no  greater  punishment  than 
fine  and  imprisonment  can  be  im[)osed,  may  have  their 
causes  heard  ami  determined  in  a  summary  way,  if  they  so 
elect,  by  the  court,  without  the  aid  of  a  Jury,  on  the 
Saturday  next  succeeding  the  commitment;  and,  in  such 
case,  only  half  the  costs  established  by  law  in  cases  of 
indictment  iound  by  a  grand  jury  are  taxed.  All  cases  for 
the  violations  of  the  Public  General  Laws  relating  to 
Licenses  may  be  tried  upon  presentment  and  be  likewise 
chargeable  with  oidy  half  costs. - 

§  <)(». — Grand  Jury. — Presentment. — Indictment. — In- 
formation.— In  all  cases  except  those  referred  to  in  the 
foregoing  Ksection  and  cases  of  summary  convictions  before 
inferior  magistrates,  prosecutions  must  be  upon  a  previous 
finding  of  fact  or  inr|iu\st  by  a  grand  jury.  The  i)roce«lure 
known  as  an  (ippcal  (tf'/cloni/'  is  now  entirely  obsolete.  The 
{)roceeding  by  in/oninttion'  is  now  likewise  ludcnown  in  the 
criminal   practice  of  this    State.     A  presentment,  in   the 


'Code  P.  L.  L.  art.  4,  sec.  183. 
'Code  P.  L.  L.  an.  4,  sees.  iy4-l8.'"),  188. 

U  Bla.  Coinin.  :U-2:  Soaper  v.  Negro  Tom.  1  H.  cS;  McH.  227. 
'4   Bla.  CoiiHu.  o08:  Kilty    Kep.  23.');  Alexander  Br.  St.  410:  Pro- 
prietary r.  Fartliiug,  I  H.  &  McH.  62. 


54  CRIMINAL   LAW. 

enlarf^od  sense  of  tlie  term,  inclurtes  not  only  iiresentments 
proi)erly  so  called,  but  also  inquisitions  of  otHce  and  indict- 
ments by  a  <>rand  jury/  In  this  State,  a  presentment 
signifies  an  informal  written  presentation  by  tbe  grand 
jury  of  ail  offense,  upon  wbicb  the  State's  attorney  after- 
wards frames  a  bill  of  indictment,  which  is  then  sent  to  the 
grand  jury  and,  if  adojjted  by  them,  endorsed  "a  true  bill," 
and  signed  by  the  foreman.  A  variance  between  the 
presentment  and  the  indictment  is  immaterial;  when  once 
an  indictment  has  been  found,  the  subsequent  proceedings 
are  based  upon  it  alone,  the  presentment  being  superseded.^ 

Jurors  are  drawn  by  the  judges  of  the  Circuit  Courts  of 
the  counties  according  to  a  careful  plan  detailed  in  the 
Code  of  Public  General  Laws,^  and  the  grand  jurors  are 
drawn  from  the  list  of  jurors  so  obtained,  at  the  beginning 
of  each  term,  the  foreman,  however,  being  appointed  by 
the  court.*  In  Prince  George's  County  a  somewhat  differ- 
ent system  prevails,"  the  number  of  grand  jurors  consisting 
of  twenty-three  instead  of  twenty-four,  as  in  the  other 
counties.  The  drawing  of  petit  and  grand  jurors  for  the 
City  of  Baltimore  is  regulated  by  local  laws,*^  twenty-three 
grand  jurors  being  selected  by  the  judges  of  the  Supreme 
Bench,  of  which  number  one  is  designated  as  foreman  by 
the  judge  of  the  Criminal  Court  of  Baltimore.  In  England 
and  in  all  our  states,  twelve  of  the  grand  jurors  must 
consent  in  order  to  render  a  finding  valid;  nor  need  more 
than  twelve,  even  though  the  grand  jury  should  consist  of 
the  full  number  of  twenty-three." 

The  grand  jurors,  being  assembled  in  the  court-room  at 
the  beginning  of  the  term  and  the  foreman  having  been 
selected,  they  are  next  sworn  by  the  clerk  in  the  following 
form : 


'4Bla.  Comm.  301. 
''Laird  v.  State,  61  Md.  309. 
•'  Art.  51,  title  '"Juries." 
'lb.,  sec.  10. 

'Code  P.  L.  L.  art.  17,  sees.  167-170. 
"Code  P.  L.  L.,  art.  4,,  sees.  538-606. 
'  1  Bishop  Cr.  Proc.  §  854. 

At  common  law  a  grand  jury  consists  of  not  less  than  twelve  nor 
more  than  twenty-four  persons,  and  is  selected  by  the  sheriff. 


PRELIMINARY    PROCEEDINGS.  55 

0((1li  of  the  Foreman.  You, ,  as  foroman  of 

tlie  ^raiul  iuquost  of  tlie  State  of  ^Maryland,  for  the 

body  of ,  shall  (lili.!;eiitly  iii(|iiire    and   tiue 

presentinent  make  of  all  tsiich  matters  and  things  as 
shall  be  given  yoii  in  charge,  or  shall  otherwise 
come  to  your  knowledge,  touching  this  present 
service;  the  counsel  of  the  State  of  Maryland,  your 
fellows,  and  your  own,  you  shall  well  and  truly  keep 
secret;  you  shall  present  no  [lerson  through  envy, 
hatred,  malice  or  ill  will;  neither  sliall  you  leave 
any  one  unpresented  through  love,  fear,  favor  or 
affection,  or  for  any  hope  or  promise  of  reward,  but 
you  shall  present  all  things  truly  as  they  come  to 
your  knowledge,  according  to  the  best  of  your  under- 
standing.    So  help  you  God. 

Oath  to  the  other  Jurymen,  three   at   a    time.  The 

same  oath  that ,  your  foreman,  bath  taken  ou 

his  part,  you  and  each  of  you,  on  your  respective 
parts,  shall  well  and  truly  observe  and  keep.  So 
help  you  God.^ 
This  oath  contains  the  substance  of  the  duties  of  the 
grand  jury.  After  the  jurors  have  been  sworn,  the  court 
delivers  a  cliarge  to  them  in  relation  to  their  functions  and 
duties  and  such  matters  falling  within  their  cognizance  as 
are  of  special  i)ublic  importance.  Courts  are  required  bj" 
different  statutes  to  give  in  charge  to  the  grand  jury  the 
])rovisions  of  the  laws  relating  to  abortion,-  defaulters,^ 
the  protection  of  liie  and  property  in  Baltimore  and  other 
cities.'  The  Criminal  Court  of  Baltimore  shall,  at  each 
term,  charge  the  grand  jury  attending  to  inquii-e  into  the 
conduct  and  management  of  the  warden,  assistant  warden 
and  otticers  of  the  Penitentiary,  and  make  presentments  of 
all  oHenses  and  omissions  of  the  said  warden,  assistant 
warden  and  otiicers  in  and  relating  to  the  said  Penitentiary; 
and  the  said  Court  shall,  at  the  terms  aforesaid,  direct  a 
number,  not  exceeding  six  of  the  said  grand  jurors,  to  visit 

'2  Hair.  Enc  3;  2  Ev.  Harr.  282;  1  Bishop  Cr.  Proc  ?  5^56. 

-Code,  art.  27,  sec.  4. 

'  lb.,  sec.  47. 

^Code  P.  L.  L..  art.  4,  sees.  125-128. 


56  CRIMINAL   LAW. 

and  examine  the  said  Penitentiary.'  The  Criminal  Court 
of  Baltimore  is  likewise  directed  to  give  the  provisions  of 
the  article  of  the  Code  of  Public  Local  Laws  in  relation  to 
elections  in  said  City  in  charge  to  each  grand  jury  which 
shall  be  in  session  at  the  time  of  anj*  election  held  in  said 
City  or  next  thereafter.'' 

If  the  essential  requirements  of  a  statute  relating  to  the 
constitution  of  the  grand  jury  are  disregarded,  that  body 
has  no  authority  to  act  and  any  indictment  found  by  it  is 
void.  The  right  of  objection  to  the  grand  jury  is  not 
confined  to  the  cluillenge  to  the  array,  but  objection, 
whether  to  individual  jurors  or  to  the  constitution  of  the 
wiiole  body,  may  be  taken  by  plea  in  abatement,  or  motion 
to  quash  after  bill  found  and  before  ])lea  to  the  merits^ 
but  not  after  judgment,  by  motion  in  arrest  thereof.*  Yet, 
although  there  may  be  technical  objections,  to  the  i)ro- 
ceedings  in  regard  to  the  selection  and  summoning  of 
grand  jurors,  in  point  of  strict  regularity,  the  courts  will 
not  set  them  aside,  unless  satisfied  that  the}'  have  resulted, 
or  may  result,  to  the  prejudice  of  the  party  accused;"  the 
possibility  that  injury  has  been  done  in  the  partuudar  case 
must  not  be  remote  and  conjectural.'^ 


'  Code,  art.  27,  sec.  412. 

•^  Code  P.  L.  L.,  art.  4  sec.  267. 

No  grand  jury  sitting  at  the  time  of  any  election  in  said  City  or 
assembling  next  thereafter  shall  be  discharged  by  the  said  Court 
until  they  have  made  written  presentment  on  their  oaths  to  the  said 
Court,  that  they  have  diligently  and  to  the  best  of  their  knowledge 
and  ability  examined  such  judges  of  election  as  may  have  come  be- 
fore them  and  inquired  into  and  acted  upon  all  complaints  con- 
cerning alleged  violations  of  the  Constitution  and  laws  touching 
elections,  at  the  election  next  preceding,  and  all  matters  concerning 
the  same  which  have  come  to  their  knowledge,  or  concerning  which 
they  have  had  information  or  reasonable  ground  of  inquiry.  lb., 
sec.  266. 

3  Clare  v.  State,  30  Md.  163:  Green  v.  State,  59  lb.  123. 

•*  Green  v.  State,  supra. 

*  State  V.  Glascow,  59  Md.  209. 

« Cooper  V.  State,  64  Md.  40,  47. 


CHAPTER  VI. 
Special  Puoceedincjs. 

§  CI.  — Scope  of  Chapter. — The  forej^oing  chapter  hav- 
ing" treated  of  the  j)relimiiiary  proceedings  in  a  criminal 
prosecution,  to  the  time  ot  the  selection  and  <|nalilication 
oltlie  grand  jury,  the  next  subject  in  the  reguhu'  orihn- of 
such  prosecution  that  calls  lor  consideration  is  the  indict- 
ment. Befor(\  however,  proceeding  with  this  subject  it  is 
thought  well  to  take  up  the  diseussion  of  certain  spe- 
cial proceedings  which  should  be  discussed  in  this  work 
and  lor  the  discussion  of  which  this  is  considered  the  most 
convenient  place. 

The  proceedings  forming  the  subject  of  this  chapter  are 
Hummanj  proceedin(i>i  before  maf/istrates,  proceedinf/s  in  rela- 
tion to  minors,  search  warrants  and  peace  warrants. 

§  62.  —  Summary  Proceedings.  —  Definition.  —  By  the 
term  sun)mar\  proceedings,  within  the  meaning  of  this 
chapter,  are  designated  all  i)roceedings  before  justices  of 
the  peace  and  other  similar  magistrates,  in  which  these 
otiicials  have  jurisdiciion  to  pronounce  a  Judgment  or  to 
commit  an  oU'ender,  when  their  adjudication  is  either  abso- 
lutely final,  or  made  final  by  the  waiver  of  rights  orsubnns- 
sion  by  the  party  accused. 

§  (VS. — Drunkenness  and  Disorderly  Conduct. — lOvery 
person  who  shall  be  found  drunk,  or  acting  in  a  dist»rderly 
manner,  to  the  disturbance  of  the  public  peace,  upon  any 
public  street  or  highway,  in  any  city  or  county  of  this 
State,  or  at  any  place  of  public  worship  or  publi(;  resort  or 
amusement,  in  any  city  or  county  of  this  State,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof,  sliall  be  subject  to  a  fine  of  one  dollar  and  costs, 
and  shall  be  committed  until  su(di  fine  and  costs  are  paid, 
or  until  such  ottender  is  discharge<l  l>y  due  course  of  law. 
The  Justices  of  the  peace  for  the  respective  counties  of  this 
State  shall  have  concurrent  Jurisdietion  over  such  offense 
with  the  Circuit  Courts  for  their  respective  counties,  and  the 


58  CRIMINAL   LAW. 

Justices  of  til e  peace  selected  to  sit  at  the  station  houses  in 
the  City  ofBaltimore^shall  have  concurrent  jmisdictiou over 
such  offense  with  the  Criminal  Court  of  Baltimore.  This 
section  not  to  apply  to  Frederick  County.^ 

§  04. — ^Jurisdiction  of  Police  Justices  in  Baltimore 
City. — It  shall  be  the  duty  of  each  justice  of  the  peace 
so  selected  lo  sit  at  any  statiou  house  in  the  City  of 
Baltimore  to  hear  all  charges  made  against  auy  person, 
because  of  the  alleged  commission  by  such  person  of  auy 
criminal  offense  ;  it  shall  be  the  duty  of  each  of  said  justices 
to  examine  carefully  into  every  such  charge,  to  the  end 
that,  while  justice  shall  be  done,  no  person  shall  be  sub- 
jected to  costs  or  imprisonment  without  sufficient  cause ; 
each  of  said  justices  of  the  peace  shall  have  i)ower  to  hear, 
try  and  determine  the  case  of  every  person  who  may  be 
arrested  and  brought  before  him  in  the  said  City  of  Balti- 
more charged  with  being  a  tramp,  who  is  or  may  be  punish- 
able as  such  under  sections  275  and  276  of  article  27  of  the 
Code  of  Public  General  Laws,  title  "Crimes  and  Punish- 
ments;" and  to  hear,  try  and  determine  the  cases  of  all 
persons  arrested  and  brought  before  him  charged  with  any 
offense  specified  in  sections  G7  or  68  of  the  same  article,  or 
in  sections  894-897  of  this  article,  subtitle  "  Vagrant  Child- 
ren; "  and  to  hear,  try  and  determine  all  prosecutions  or 
criminal  proceedings  brought  before  him  for  any  act  done, 
or  omitted  to  be  done, in  the  City  of  Baltimore,  the  doing  of 
which  act  or  the  omission  to  do  which  act  is  or  may  be  punish- 
able under  any  act  of  Assembly  of  this  State  or  under  any 
ordinance  of  the  Mayor  and  City  Council  of  Baltimore  by 
a  pecuniary  fine  only  not  exceeding  in  amount  the  sum  of 
one  hundred  dollars.  It  is,  however,  hereby  expressly  pro- 
vided, that  the  said  justices  shall  not  have  power  to  try 
and  determine  any  violation  of  the  Code  of  Public  General 
Laws  of  this  State,  relating  to  licenses,  except  violations 
of  the  laws  relating  to  "Hawkers  and  Peddlers,"  which 
they  shall  have  jurisdiction  to  try  and  determine  ;  and  shall 
not  have  power  to  try  and  determine  anj-  violations  of  the 
laws  relating  to  "  Sabbath-breaking, "  but  shall  cause  all 
such  offenders  against  the  said  provisions  of  said  Code  of 


^Code,  art.  27,  sec. 


68 


SPECIAL   PROCEEDINGS.  59 

Public  General  Laws,  except  as  aforesaid,  to  be  coiniiiitted 
or  lield  to  bail  lor  trial  before  tbe  Criminal  Court  of  IJalti- 
moie.' 

In  all  criminal  prosecutions  or  proceedings  wliicli,  un«ler 
tbe  provisions  of  tbe  precedinj;  section,  niay  be  beard,  tried 
and  determined  before  a  justice  of  tbe  peace  sitting  at  a 
station  bouse  in  tbe  City  of  Baltimore,  it  sball  be  tbe  duty 
of  sucb  justice  of  tbe  peace  before  wbom  sucli  case  is  tried, 
in  tbe  event  of  tbe  conviction  of  tbe  accused  at  tbe  said 
trial,  to  impose  upon  tbe  said  accused  so  convicted  tbe  tine 
or  tbe  tine  and  puuisbment,  prescribed,  in  case  of  sucb  con- 
viction, by  tbe  act  of  Assembly  of  tbis  State,  or  by  tbe  or- 
dinance of  tbe  Mayor  and  City  Council  of  Baltimore,  for  tbe 
violation  of  wbicb  tbe  accused  was  so  tried.  Any  person 
sentenced  to  tbe  payment  of  any  tine  and  to  tbe  payment  of 
tbe  costs  of  bis  or  ber  prosecution,  wbo  sball  not  torflnvitb 
pay  tbe  said  tine  and  costs  of  said  prosecution,  sball  be  com- 
mitted by  sucb  justice  of  tbe  peace  to  tbe  jail  of  Baltimore 
City  until  sucb  fine  and  costs  are  paid,  or  until  tbe  said 
person  sball  be  discbarged  from  sucb  jail  by  due  course  of 
law." 

If  any  person  cbarged  witb  any  of  tbe  ortenses  bcrein- 
before  referred  to  sball,  wben  brougbt  before  any  justice 
of  tbe  peace  sitting  at  a  station-bouse  in  tbe  City  of  Balti- 
more, before  tbe  beginning  of  bis  actual  trial  for  sucb 
offense,  pray  a  jury  trial  it  sball  be  duty  of  sucb  justice 
of  tbe  peace  to  commit  sucb  alleged  offender  for  trial 
before  tbe  Criminal  Court  of  Baltimore,  or  to  bold  tbe 
said  alleged  oH'cnder  to  good  and  suflicient  bail,  to  api)ear 
for  trial  before  tbe  Criminal  Court  of  Baltimore  at  its  next 
sitting,  and  to  endorse  u]»on  said  commitment  or  recog- 
nizance tbe  names  and  residences  of  tbe  witnesses  for  tbe 
prosecution;  and  sucb  commitment  or  recognizance  so  en- 
dorsed shall  be  returned  fortbwitb  to  tbe  clerk  of  tbe  said 
Criminal  Court  of  Ibiltimore.' 

§  0."» — Summary  Jurisdiction  of  Justices  of  the  Peace 
in  Certain  Counties. — Tbe  several  justices  of  tbe  peace 

'  Code  P.  L.  L..  art.  4,  sec.  615. 

-lb.,  sec.  61C. 

■'Code  P.  L.  L..  art.  4.  sec.  017. 


60  CRIMINAL   LAW. 

of  IMonrgoiiier.v,  Kent,  C^barles,  Howard,  Caroline,  Calvert, 
Harlord,  Garrett,  Dorchester,  Prince  George's,  8t.  Mary's, 
Somerset,  Talbot,  Washington,  Wicomico,  Anne  Arundel 
and  Allegany  counties  shall  have,  in  addition  to  the  juris- 
diction which  they  now  possess  and  which  may  be  con- 
ferred upon  them  by  or  under  the  laws  of  this  State,  juris- 
diction concurrent  with  that  exercised  by  the  Circuit  Courts 
for  said  counties  in  all  cases  of  assault  without  any  feloni- 
ous intent;  and  in  all  cases  of  assault  and  battery;  and  in 
all  cases  of  petit  larceny,  when  the  value  of  the  property 
stolen  does  not  exceed  tlie  suu)  of  live  dollars;  and  in 
all  misdemeanors  not  punishable  by  confinement  in  tlie 
Penitentiary,  which  may  be  committed  within  their  re- 
s[)ective  jurisdictions;  and  shall  have  jurisdiction  in  all 
prosecutions  or  i)roceedings  for  the  recovery  of  any  penalty 
for  doing  or  omitting  to  do  any  act  the  doing  of  which  or 
the  omission  to  <lo  whicli  is  made  punishable  under  the 
laws  of  this  State,  within  their  said  jurisdiction,  by  any 
pecuniary  fine  or  penalty  or  l)y  imi)risonment  in  jail  or  in 
the  Marvland  House  of  Correction;  all  of  which  acts  or 
connnissions  are  hereby  declared  to  be  criminal  offenses; 
and  the  said  justices  shall  have  power  to  issue  all  process 
and  to  do  all  acts  which  may  be  necessary  to  the  exercise  of 
their  said  jurisdiction,  and  may  try  and  <letermiue  all 
cases  whereof  they  may  have  jurisdiction  and  may  pro- 
nounce judgment  and  sentence  therein  in  the  same  man- 
ner and  to  the  same  extent  as  the  Circuit  Courts  for  said 
counties  could  in  such  cases,  if  such  cases  were  tried  before 
them  without  the  intervention  of  a  jury;  i)rovided,  how- 
ever, that  if  anj"  ])erson,  when  brought  before  any  such 
justice  having  jurisdiction  of  the  case,  shall,  before  trial 
for  the  alleged  offense,  pray  a  jury  trial  on  the  i)art  of  the 
State,  it  shall  be  the  duty  of  any  such  justice  to  commit 
such  alleged  offender  for  trial  or  to  hold  said  offender  to 
bail  to  appear  for  trial  in  the  Circuit  Court  for  the  county 
in  which  the  offense  was  committed,  at  its  then  session,  if 
it  be  then  in  session,  or  at  its  next  session,  if  it  be  not 
then  in  session,  and  to  return  said  commitment  or  recog- 
nizance, with  the  names  and  residences  of  the  witnesses 
for  the  i)rosecution  endorsed  thereon,  forthwith  to  the 
clerk  of  the  said  court;  and  the  justice  before  whom   the 


SPECIAL    PUOCEKDINCS.  01 

case  is  tried  shall  iiitbnii  the  person  charjied  <»!  liis  li^iht 
to  a  Jury  trinl.' 

§  (i<!. — Tramps. — livery  person,  imt  insane,  who  wanders 
about  in  this  State  and  lodj^cs  in  market-houses,  market- 
places, or  in  other  piililic  huildin^s,  or  in  barns,  outhouses, 
barracks,  sheds,  or  in  the  open  air,  without  having-  any 
fixed  place  of  residence,  and  without  Inivinj;-  any  lawful 
occupation  in  the  city,  town  or  <'ounty  in  which  he  may 
so  wander,  and  without  havinji'  any  visible  means  of  sup- 
port, shall  be  deemed  to  be  a  tramp  and  to  be  guilty  of  a 
misdemeanor,  and  shall  be  subje(;t  to  inqirisonment  in  the 
Maryland  House  of  Oorre(;tion  for  a  period  of  not  less  than 
two  months  nor  more  than  one  year.  This  section  uot  to 
apply  to  Allegany  County. - 

The  respective  justices  of  the  i)eace  in  the  resj)ective 
counties  of  this  State  shall  have  concurrent  jurisdiction 
with  the  Circuit  Courts  for  their  respective  counties,  and 
the  justices  of  the  peace  selected  to  sit  at  the  respective 
station-houses  in  the  City  of  Baltimore  shall  have  cou- 
eurrent  jurisdiction  with  the  Criminal  Court  of  Baltimore 
in  the  cases  of  ]»ersons  arrested  as  tramps;  and  such  respec- 
tive justices  shall  proceed  to  hear  and  determine  such  cases 
Avhen  the^  i)arties  arrested  as  tramps  are  brought  before 
them,  respectively,  and  to  acquit  such  })ersons  or  to  sen- 
tence them  for  such  offense,  if  convicted;  unless  sucli  re- 
spective persons  so  charged,  when  so  brought  befoie  them, 
respectively,  and  before  they  are  resi)ectively  tried  asafore- 
•said,  shall  pray  a  jury  trial.  If  any  person  charged  with 
being  a  tramp,  brought  before  a  justice  of  the  peace  selected 
to  sit  at  a  station-house  in  the  City  of  Baltimore,  shall  pray 
a  jury  trial  as  aforesaid,  it  shall  be  the  duty  of  the  said 
justice  of  the  peace  to  commit  such  person  for  trial  or  to 
hold  him  to  bail  to  appear  before  the  Criminal  Court  of 
Baltimore  on  the  next  succeeding  Saturibiy  of  the  session 
of  the  said  court,  and  to  return  the  commitment  or  recog- 
nizance in  such  case  to  the  clerk  of  the  said  eourt  on  or 
before  the  day  next  preceding  the  next  Saturday  session 
of  said  court;  and,  if  any  person  charged  with   being  a 


'  Code  P.  L.  L.,  art.  5,  sec.  93. 
^Code,  art.  27,  sec.  275. 


()2  CRIMINAL   LA'W. 

tramp,  bioiiiiht  before  a  justice  of  the  peace  for  any  county 
in  this  State,  shall  pray  a  jury  trial  as  aforesaid,  it  shall 
be  the  duty  of  the  said  justice  of  the  peace  to  commit  such 
person  for  trial  or  to  hold  liiin  to  bail  to  appear  for  trial 
before  the  Circuit  Court  for  the  county  in  which  such  per- 
son was  arrested,  at  the  pendino-  term  of  said  Circuit  Court, 
if  it  be  then  in  session,  or  at  the  next  term  thereof,  if  it 
be  not  then  in  session.  Such  respective  justices  of  the 
peace  sliall  endorse  upon  the  commitment  or  recognizance 
of  any  such  person  so  praying  a  jury  trial  the  names  and 
places  of  residence  of  the  witnesses  on  behalf  of  the  prose- 
cution, and  shall  cause  such  respective  witnesses  to  enter 
into  recognizance  for  their  respective  api)earance  against 
such  ])erson  in  the  court  into  which  such  commitment  or 
recognizance  for  the  appearance  of  the  party  charged  is 
returned,  at  the  time  prescribed  for  the  appearance  in  such 
court  of  the  person  so  charged.  This  section  not  to  apply 
to  Allegany  County.^ 

§  67. — Vagrant  Laws  for  Baltimore  City. — Paupers, 
habitual  beggars,  vagrants,  vagabonds  or  disorderly  jier- 
sons,  may  be  arrested  in  Baltimore  City  and  brought  before 
the  Criminal  Court  or  a  justice  of  the  peace  and  may  be  sent 
to  the  almshouse  or  such  other  suitable  place  ^s  may  be 
provided  foi-  such  purpose  by  the  corporation.  In  either 
case  the  party  charged  may  demand  a  jury  trial.  If  de- 
n)anded  before  a  justice  of  the  peace,  the  case  must  be 
certitied  to  the  Criminal  Court  to  be  proceeded  wath  and 
tried  as  if  the  same  had  been  originally  brought  before  said 
court.     Special  provision  is  made  for  the  case  of  minors." 

§  08. — Certiorari  when  Justice  of  the  Peace  exceed 
their  Jurisdiction. — The  process  by  certiorari  is  the  appro- 
priate and  well-known  mode  b^'  which  the  superior  courts 
examine  into  the  authority  of  an  inferior  tribunal  and 
ascertain  whether  it  has  transcended  the  special  powers  to 
which  it  is  limited  by  law.''  When  a  justice  of  the  peace, 
therefore,  proceeds  against  a  party  accused  without  legal 
powPT  or  jurisdiction,  the  proceedings  may  by  this  writ  be 

'  Code,  art.  27,  sec.  276. 

2  Code  P.  L.  L.,  art.  4,  sees.  878-893. 

^Swann  v.  Mayor,  8  G.  150. 


SPECIAL   PROCEEDINGS.  63 

brought  bofore  a  sn])Ciior  court  of  record/  The  writ  must 
be  issued,  mj)oii  the  orcb'r  ot  a  jiidj^e  or  ot  the  court,  l>.v  the 
clerk  thereof,  under  the  seal  of  the  court,  and  be  made  re- 
turnable into  the  same  court.-  It  cannot  be  directed  to  any 
officer  or  niagistiate  of  inferior  jurisdiction  l)eyond  the 
limits  of  the  county  from  whose  Circuit  (.'ourt  it  may  issue.' 
§  (»!>. — Proceedings  in  Relation  to  Minors — Their 
Nature — Constitutionality  of  Statutes. — .lustices  of  the 
peace  ami  other  ofiicials  are  vested  by  various  statutes  with 
authority  to  commit  minors  to  the  care  and  guardianshii) 
of  juvenile  institutions.  The  proceedin<;- in  such  cases  is 
not  a  criminal  proceeding',  and  no  regular ///a/  is  necessary 
to  anthoiize  the  commitment  of  minors  to  houses  of  refuge 
and  reformatories  when  such  course  is  rendered  necessary 
or  requisite  to  their  moral  and  future  welfare.  The  right 
of  the  state,  or  government  to  intervene  in  sucli  cases  is 
fully  established.'  Third  |)arties,  wbetber  parents,  guar- 
dians or  others,  can  set  up  no  rights  or  claims  to  interfere 
with  a  proper  disposition  and  care  of  the  minor.  No  one 
can  claim  a  right,  in  the  ordinary  sense  of  the  term,  to  the 
control  or  guardianshii)  of  a  nunor.^  The  domestic  rela- 
tions are  under  the    control  and  regtdation  of  municipal 


'Hall  V.  State,  12  G.  &  J.  329:  Rayner  v.  State,  52  Md.  368. 
2  State  V.  Glenn,  54  Md.  572,  GIO. 

*  Roth  V.  House  of  Refuge,  31  Md.  329;  Exp.  Grouse,  4  Whart.  9; 
Milwaukee  lud.  School  v.  Supervisors,  40  Wis.  328;  Prescott  v.  State. 
19  O.  St.  184;  In  re  Kruse,  2  Ciun.  Sup.  Ct.  R.  71;  House  of  Refuge 
V.  Ryan,  37  O.  St.  197;  Faruham  i:  Pierce,  141  Mass.  203;  In  re 
Donohue,  1  Abb.  New  Gas.  1;  S.  C.,  52  How.  Pr.  251;  People  c  Tur- 
ner, 55  111.  280;  S.  G.,  10  Am.  L.  Reg.  366;  In  re  Ferrier,  103  111.  367; 
McLean  c.  Humphry,  104  lb.  378. 

•  1  Bla.  Comm.  452;  2  Kent  Comin.  204;  In  re  Moore,  11  Ir.  C.  L. 
N.S.  1, 14;  In  re  Connor,  16  Ir.G.  L.  N.  S.  112,  124:  Merceiu  r.  People, 
25  Wend.  64,  103;  Striplin  r.  Ware,  36  Ala.  87;  Albert  r.  Perry,  14 
N.  J.  Eq.  540;  In  re  Lewis,  88  N.  C.  31;  The  Etna,  1  Ware,  462; 
Wodell  r.  Goggeshall,  2  Mete  89;  Gary  r.  James,  4  Desauss.  185; 
Stausbury  r.  Bertron,  7  W.  &  S.  362;  U.  S.  r.  Green,  3  Mason,  482; 
Comm.  r.  Gilkeson,  10  Penna.  L.  J.  505:  S.  C,  1  Phila.  194:  Exp. 
O'Neal,  3  Am.  L.  Rev.  578;  Exp.  Schumpert,  6  Rich.  S.  G.  344:  In  re 
Gregg,  5  N.  Y.  Leg.  Obs.  265;  People  c.  Porter,  23  111.  App.  196. 


64  CRIMINAL   LAW. 

laws.'  Thus,  the  matter  of  fixing-  the  period  of  miuority.- 
the  disabilities  and  iiiimuuities  attaching  to  the  status  of 
infancy,  the  right  of  custody,  the  matter  of  education,-'  the 
matter  of  the  sale  of  liquor  to  minors,  with  or  without  the 
consent  of  parents  or  guardians,*  are  all  within  legislative 
and  judicial  control.  Where,  how-ever,  the  proceeding 
against  a  minor  has  for  its  object  his  punishment  for  crime, 
even  though  the  commitment  be  to  a  juvenile  institution, 
all  the  regular  formalities  of  criminal  procedure  must  be 
observed;"  and  where  the  proceeding  is  quasi  criminal,  as 
under  statutes  authorizing  the  commitment  of  minors  to 
juvenile  reformatories  upon  complaint  of  incorrigibility 
preferred  by  i)arents  or  guardians,  tlie  powers  of  commit- 
ment are  strictly  construed." 

§  70. — Commitment  of  Mendicant  and  Vagrant  Chil- 
dren.— Any  person,  having  in  his  care,  custody  or  control 
any  child  under  the  age  of  sixteen  years,  whether  as  parent, 
guardian,  relative,  employer  or  otherwise,  who  shall  sell, 
apprentice,  or  give  away,  let  out  or  otherwise  disi)Ose  of 
any  such  child  to  any  person,  under  any  name,  title  or  pre- 
tense whatever,  and  any  person,  whether  as  parent,  guar- 
dian, relative,  em])loyer  or  otherwise,  who  shall  take,  re- 
ceive, hire,  employ,  use  or  have  in  custody  any  such  child 
for  the  vocation,  use,  occupation,  calling,  service  or  pur- 
])ose  of  singing,  playing  on  musical  instruments,  rope-walk- 
ing, dancing,  peddling,  begging  or  any  mendicant  or 
wandering  business  whatsoever,  shall  be  deemed  guilty  of 
a  misdemeanor,  and,  upon  conviction  thereof,  before  any 
competent  tribunal  to  which  such  person  may  be  committed 
for  trial,  shall  be  fined  not.  less  than  fifty  nor  more  than 
two  hundred  and  fifty  dollars,  or  be  imprisoned  in  a  county 
jail  for  not  less  than  thirty  days  nor  more  than  a  year,  or 
sulier  both  such  fine  and  imprisonment,  in  the  discretion  of 
the  said  tribunal,  one-half  of  all  fines  so  imposed  to  be  paid 


'  Bennet  r.  Bennet,  13  N.  J.  Eq.  114. 

-Parker  r.  Starr,  21  Neb.  680. 

•'  Bennet  v.  Bennet.  supra. 

"State  V.  Clottu,  33  Ind.  409;  State  r.  Lawrence,  97  N.  C.  492. 

■^Comm.  r.  Horregau,  127  Mass.  4r)0:   State  r.  Ray,  63  N.  H.  406. 

"  Comm.  r.  McKeagy,  1  Ashm.  251. 


SPECIAL    lM{OrEEDTX«S.  ()~> 

to  the  intbnner.'  Ft,  on  .cxatniiiation  before  any  court  or 
justice  of  the  jjeace,  it  shall  be  proved,  tliat  any  child  was 
enj>:a<i;e(l  in  any  businessor  vocation  designated  or  nicnticMU'd 
in  the  preceding  section,  such  child  shall  l)e  deemed  a 
vngrant  and  comniitled  to  any  reformatory  institution  to 
which  vagrant  minors  may  be  committed  uuder  the  laws  of 
this  State.= 

§   71.— Commitment    of    Vagrant    Children    in    Balti- 
more.— >'o  minor,  if  a  girl,  under  the  age  of  sixteeu  years, 
or,  if  a  boy,  under  the  age  of  fourteen  years,  shall  be  ad- 
mitted to  or  i)ermitted  to  remain  iu  any  saloon,  place  of 
entertainnjent  or  amusement,  known  as  dance-houses,  con- 
cert saloon,  theatre  or  varieties,  where  immoral,  indecent, 
obscene  or  vulgar  language,  display  or  performance  is  per- 
mitted, allowed  or  carried  on ,  or  where  any  spirituous  1  iquors, 
wines,  intoxicating  or  malt  liquors  are  sold,  exchanged  or 
given  away,  unless  accompanied  by  parents  or  guardian. 
Any  proi)rietor,  keeper  or  manager  of  any  such  jdace  who 
shall  admit  such  minor  to  or  permit  him  or  her  to  remain 
in  such  i)lace,  unless  accompanied  by  parent  or  guardian, 
shall  be  guilty  of  a  misdemeanor,  and  shall,  upon  convic- 
tion by  any  court  of  competent  jurisdiction,  be  fined  ten 
dollars  and  costs  for  each  and  every  oflfense.'     Every  per- 
son having  the  custody  of  any  girl  under  the  age  of  sixteen 
years,  and  of  any  boy  under  the  age  of  fourteen  years,  shall 
restrain    such    child    from    habitually    begging,    whether 
actually  begging  or  under  tlie  pretense  of  peddling.     Any 
person  oflending  under  this  section  shall  be  considered  and 
deemed  as  incapable  of  taking  care  of  and   providing  for 
such    child,  and  such  child  shall,    by  reason    thereof,    be 
deemed  as  coming  within  the  conditions  of  the  next  suc- 
ceeding- section.'     Any  girl  apparently  under  the  age  of 
sixteen  years  and  any  boy  apparently  uuder  the  age  of 
fourteen  years  that  comes  within  any  of  the  following  de- 
scriptions named:  that  is  known  to  be  habitually  begging 
or  receiving;  or  gathering  alms,  whether  actually  begging 


'  Code,  art.  '21.  sec.  '27:^. 
•lb.,  sec.  274. 

'Code  P.  L.  I...  art.  4.  sec.  894. 
"lb.,  sec.  biO.'i. 


66  CRIMINAL   LAW. 

or  under  the  preten.se  of  peddling'  or  offering"  for  sale  any- 
thing, or  being  in  any  street,  road  or  public  place  for  the 
purpose  of  so  begging,  gathering  or  receiving  alms;  that  is 
found  wandering  and  not  having  any  home  or  settled  place 
of  abode  or  proper  guardianship,  or  visible  means  of  sub- 
sistence; that  is  found  destitute,  either  being  an  orphan  or 
having  a  vicious  parent  who  is  undergoing  penal  servitude 
or  imi)risonment;  that  frequents  the  company  of  reputed 
thieves  or  i)rostitutes,  or  houses  of  assignation  or  prostitu- 
tion, or  dance-houses,  concert  saloons,  varieties,  or  places 
specitied  in  section  894  hereof,  without  parent  or  guardian, 
shall  be  arrested  and  brought  before  a  court  or  magistrate. 
When,  upon  examination  before  a  court  or  magistrate,  it 
shall  appear  that  any  such  child  has  been  engaged  in  any 
of  the  aforesaid  acts,  or  comes  within  any  of  the  aforesaid 
descriptions,  such  court  or  magistrate,  when  it  shall  deem 
it  expedient  for  the  welfare  of  the  child,  shall  commit  such 
cliild  to  an  orphan  asylum,  charitable  or  other  institute,  or 
make  such  other  disposition  thereof  as  now  is  or  may  here- 
after be  jirovided  by  law  in  case  of  vagrants,  truant,  dis- 
orderly, pauper  or  destitute  children;  provided,  however, 
that  none  of  the  provisions  of  this  subtitle  shall  be  con- 
strued so  as  to  prevent  children  from  selling  or  offering  for 
sale  newspapers.^  Any  person  representing  himself  or  her- 
self to  be,  or  passing  himself  or  herself  off  as  the  parent  or 
guardian  of  a  child  or  children  referred  to  in  an^'  of  the 
aforesaid  sections  of  this  subtitle,  when  it  shall  appear  that 
such  i)ersou  is  not  either  the  parent  or  guardian  of  said 
child,  shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon 
conviction  by  any  court  of  competent  jurisdiction,  shall  be 
fined  not  more  than  twenty  dollars  and  costs  for  each  and 
every  offense. - 

§  72. — Destitute  and  Suffering  Minors. — Commitment. 
— Any  minor,  having  no  parent  or  guardian  and  being  desti- 
tute ofmeansofsupport,  or  suffering  through  the  neglect,  bad 
habits  or  vicious  conduct  of  its  parent,  guardian  or  other 
custodian,  may  be  arrested  and  brought  before  any  judge 
of  a  court  of  record  or  justice  of  the  peace  and  committed 


>  Code  P.  L.  L.  art.  4,  sec.  896. 
nb.,  sec.  897. 


SPECIAL   PROCEEDINGS.  07 

by  said  ju(lf;e  orjustiot'  of  tiie  peace  to  any  eharitable,  le- 
lonnatoiy  or  other  institution  for  the  care  and  custody  of 
minors,  incorporated  under  the  hiws  of  this  State,  subject 
to  the  discipline,  reyuUitions  and  powers  of  sucli  institu- 
tions.' Upon  the  return  of  any  writ  of  habeas  corpus  issu- 
ing' for  the  production  of  any  child  so  committed,  the  court 
or  judj;e  before  whom  the  habeas  corpus  proceeding-  is  tried 
may  review  the  facts  upon  which  the  commitment  was 
made,  and  hear  new  evidence,  and  remand,  release  or  com- 
mit such  minor.^ 

§  73. — ^Juvenile  Institutions. — The  foregoing  statutes,  in 
a  large  measure,  supersede  the  necessity  of  i)roceoding 
under  laws  relating  si)ecitically  to  particular  institutions. 
It  should  be  noted,  however,  that  special  provisions  for  the 
commitment  of  minors  are  to  be  found  in  regard  to  the 
following  institutions:  House  of  Kefuge,'  Female  House  of 
Eefuge,*  House  of  the  Good  Shepherd,'  St.  ^Mary's  Indus- 
trial School  for  Boys,"  House  of  Eeformation,'  Industrial 
Home  for  Colored  (Tirls,**  Home  of  the  Friendless,'  Boys' 
Home,'"  Henry  Watson  Children's  Aid  Society,''  Dolan 
(Children's  Aid  Society,"  Hebrew  Orphan  Asylum,"  Pro- 
testant Infant  Asylum,"  St.  Vincent's  Infant  Asylum, '^  St. 
.Mary's  Orphaline  School,'*  Asylum  and  Training  School  for 
the  Feeble  Minded,'"  The  Nursery  and  Child's  Hospital  of 
Baltimore  City.'* 


'  Code,  art.  43,  sec.  18. 

-lb.,  sec.  19. 

^Code,  art.  27,  sees.  351-371. 

nb.,secs.  372,  373. 

Mb.,  sees.  321-329. 

« lb. .  sees.  384-388. 

'lb.,  sees.  330-3i0. 

•"lb.,  sees.  374-383. 

"Code  P.  L.  L.,  art.  4,  seca.  903-907. 

'"lb.,  sees.  898-900. 

"  lb.,  sec.  911. 

■nb.,  sec.  901. 

"lb.,  sec.  902. 

'Mb.,  sec.  908. 

i^b.,  sees.  909,  910. 

'"Laws  1818,  ch.  71;  1886,  oh.  172;  1888,  ch.  159. 

"Laws  1888,  ch.  183. 

"*Law8  1888,  ch.  426. 


6S  CRIMINAL   LAW. 

Questions  of  tlie  regularitj'  of  the  commitments  to  sucb 
institutions,  so  far  as  matters  of  mere  form  are  concerned, 
are  obviated  bj-  tbe  following  statutory  provision  : 

Wbenever  a  minor  is  brought  before  a  court  or 
judge  upon  haheafi  corpus^  in  private  custody,  it  shall 
be  the  duty  of  such  court  or  judge,  in  the  determina- 
tion of  the  case,  to  be  guided  by  what  ap[)ears  to  be 
for  the  best  interests  of  such  minor,  in  respect  to  his 
temi)oral,  his  mental  and  his  moral  welfare  ;  and,  if 
it  be  made  to  appear,  to  the  satisfaction  of  such 
court  or  judge,  that  such  interests  would  be  best  pro- 
moted by  such  course,  it  shall  be  the  duty  of  suck 
court  or  judge  to  commit  such  minor  to  the  care  and 
custody  of  any  charitable,  reformatory  or  other  insti- 
tution for  the  care  and  custody  of  minors,  incorpo- 
rated under  the  laws  of  this  State,  subject  to  the 
discipline,  regulations  and  powers  of  such  institution; 
and  any  court  or  judge  disposing  of  the  custody  of  a 
minor   upon  habeas  corinis  may   retain  jurisdiction 
over  such  minor,   and  may  make  such  other   and 
further  orders  in  relation  to  the  care  and  custody  of 
such  minor  as  circumstances  may  require.^ 
§  74. — Search-Warrants. — A  search-warrant  is  a  war- 
rant requiring  the  officer  to  whom  it  is  addressed  to  search 
a  house  or  other  place  therein  specified,  for  property  therein 
alleged  to  have  been  stolen,  and,  if  the  same  shall  be  found 
upon  such  search,  to  bring  the  goods  so  found,  together 
with  the  body  of  the  person  occupying  the  same,  who  is 
named,  before  the  justice  or  other  officer  granting  the  war- 
rant, or  some  other  justice  of  the  peace  or  other  lawfully 
authorized  officer." 


'Code,  art.  42,  sec.  20. 

The  custody  of  a  charitable  or  reformatory  institution  to  which  a 
minor  is  committed  for  mere  care  and  guardianship,  as  distinguished 
from  a  commitment  by  way  of  sentence  or  punishment  for  crime,  is 
priratecvfitody,  this  phrase,  when  applied  to  infants  or  minors,  having 
a  technical  meaning,  to  wit,  custody  under  claim  of  guardianship  as 
distinguished  from  the  custody  of  a  public  officer  in  virtue  of  his 
office.  R.  V.  Delaval,  3  Burr.  1434.  The  institutions  enumerated 
are  not  classed  as  public  institutions.  St.  Mary's  Ind.  School  v. 
Brown,  4o  Md.  310:  Perry  r.  House  of  Refuge.  63  lb.  20. 

-Bouvier  Law  D.,  lit-.  Search- Warrant. 


SPECIAL    I'llOCEEDlNGS.  0!> 

The  Declaration  of  liights  asserts,  That  all  warrants, 
without  oath  or  affirmation,  to  search  suspected  places,  or 
to  seize  any  person  or  property,  are  grievous  and  oppres- 
sive; and  all  <;eneral  warrants  to  search  suspected  places, 
or  to  ai)prchend  suspected  ])ersons,  without  nainiiiif  or 
descrihinj;- the  place  or  the  [)erson  in  special,  are  illegal  and 
ought  not  to  be  granted.' 

The  use  of  search  warrants,  at  common  law,  appears  to 
be  limited  to  the  search  for  stolen  goods."  A  search-war- 
rant to  seize  libels  and  other  papers  of  a  suspected  party 
is  illegal.'  Statutes  in  this  State  authorize  the  seizure,  by 
means  of  this  process,  of  arms,  weapons  and  ammunition 
intended  to  be  used  for  the  purpose  of  interfering  with  the 
freedom  of  elections'  and  to  enter  places  where  unlawful 
gaming  is  carried  on,-'  or  where  gunpowder  is  unlawfully 
stored." 

The  search-warrant  is  not  to  be  granted  without  oath 
made  before  the  justice,  that  the  party  complaining  has 
probable  cause  to  susi)ect  that  his  pro[>erty  has  been  stolen, 
or  is  concealed  in  such  a  i)lace,  and  showing  the  reasons 
for  such  suspicion.  The  oath  need  not  positively  and 
directly  aver  that  the  property  has  been  stolen.  The  war- 
rant should  direct  the  search  to  be  made  in  the  daytime, 
though,  it  is  said,  that  where  there  is  more  than  probable 
suspicion,  the  process  may  be  executed  in  the  night.  It 
ought  to  be  directed  to  a  constable  or  other  public  officer, 
and  not  to  a  i)rivate  person,  though  it  is  lit  that  the  party 
complaining  should  be  present  and  assisting,  because  he 
will  be  able  to  identify  the  property  he  has  lost.  It  should 
also  command  that  the  goods  found,  together  with  the 
party  in  whose  custody  they  are  taken,  be  brought  before 
some  justice  of  the  peace,  to  the  end  that,  ni)ou  further 
examination  of  the  fact,  the  goods  and  the  prisoner  may 
be  disposed  of  as  the  law  directs." 

'  Art.  26. 

M  Bishop  Cr.  Proc  iS.  241. 

^  1  Chitty  Cr.  L.  6".. 

^Code  P.  L.  L.,  art.  4,  sec.  270. 

'  Baltimore  City  Code,  art.  21,  sec.  4. 

"  lb.,  art.  20.  sec.  57. 

'  1  Chitty  Cr.  L.  65. 


70  CRIMINAL   LAW. 

^yith  respect  to  the  mode  of  executing  tliis  warrant,  if 
the  door  be  shut  and,  upon  demand,  not  opened,  it  may  be 
broken  open,  and  so  may  boxes,  after  the  keys  have  been 
demanded,  and  though  the  goods  be  not  found,  the  officer 
will  be  excused,  though,  if  the  party  obtaining  the  warrant 
acted  maliciously,  he  will  be  liable  to  a  special  action  on 
the  case,  but  not  to  an  action  of  trespass.  But  the  officer 
must  strictly  observe  the  directions  of  the  warrant,  and,  if, 
for  instailVie,  he  be  directed  to  seize  only  stolen  sugar,  and 
seize  tea,  he  will  be  a  trespasser.^ 

If,  on  the  return  of  the  warrant  before  the  justice,  it 
appear  that  the  goods  were  not  stolen,  they  are  to  be  re- 
stored to  the  possessor.  If  it  appear  that  they  were  stolen, 
they  are  not  to  be  delivered  to  the  proprietor,  but  depos- 
ited in  the  hands  of  the  sheriff  or  constable,  in  order  that 
the  party  robbed  may  proceed,  by  indicting  and  convicting 
the  offender,  to  have  restitution.  The  party  who  had  the 
custody  of  the  goods  is  to  be  discharged,  if  they  were  not 
stolen;  and,  if  they  were,  not  by  him,  but  by  another  per- 
son, Avho  sold  or  delivered  them  to  him,  and  it  ai)pear  that 
he  was  ignorant  of  the  mode  in  which  they  were  procured, 
he  may  be  discharged,  but  bound  over  to  give  evidence  as 
a  witness  against  him  that  sold  them;  if  it  appear  that  he 
knew  them  to  be  stolen,  then  he  should  be  bound  over  to 
answer  the  felony. - 

§  75. — Peace  "Warrants. — Surety  of  the  peace  is  one  of 
the  branches  of  preventive  justice,  and  consists  in  obliging 
those  persons  whom  there  is  probable  ground  to  suspect 
of  future  misbehavior  to  stipulate  with  and  give  full  assur- 
ance to  the  public  that  such  offense  as  is  apprehended  shall 
not  happen,  by  finding  ])ledges  or  securities  for  keeping 
the  peace.  One  who  seeks  surety  of  the  peace  against 
another  must  apply  to  some  justice  of  the  peace  and  take 
the  required  oatli,  in  which  among  other  things,  he  must 
swear  that  he  does  not  ask  it  "out  of  malice  or  for  vexa- 
tion." This  is  an  important  part  of  the  oath  and  should 
never  be  omitted,   for  great  caution  should  be  observed 


'  1  Chitty  Cr.  L.  66. 

2  lb.  67. 

For  form  of  warrant  see  Latrobe  Just.  377. 


SPECIAL    PROCEEDINf'rS.  71 

by  tlio  maf>:isti'ate,  espociiilly  wliore  the  ajiitlication  seems 
to  arise  IVoiii  malice;  and  the  writ  sliouhl  never  be  granted 
merely  because  the  ai)plicant  is  at  variance  with  anf>ther. 
Wlien  this  oath  is  duly  taken,  the  justice  issues  the  war- 
rant, which,  after  recitinj,'  the  oath,  commands  the  sheriff 
or  otiier  otlicer  to  api)rehend  the  party  and  bring  him  be- 
fore the  subscriber,  or  some  other  justice,  to  find  surety  for 
his  ap|)earance  at  the  next  Circuit  Court  of  the  county  as 
also  for  keeping  the  peace  in  the  meantime  towards  the 
citizeJis  of  the  State  and  chiefly  towards  the  complainant. 
When  he  is  arrested  and  brought  before  the  magistrate,  he 
is  at  once  required  to  give  the  requisite  security,  and  if  he 
refuses  or  fails  to  do  so,  he  is  committed  to  jail  until  he 
linds  such  security  or  is  discharged  by  due  course  of  law. 
W  he  gives  the  security  immediately  or  before  the  next 
(•ourt,  the  magistrate  releases  him  from  custody.  The  con- 
dition of  the  recognizance  is  that  the  party  shall  well  and 
truly  make  his  appearance  to  the  next  Circuit  Court,  there 
to  receive  what  the  court  may  enjoiu  upon  him,  and,  in  the 
meantime,  to  keep  the  peace  as  stated  in  the  warrant;  and 
the  recognizance  is  then  returned  to  the  court.  If  the  party 
remains  in  jail,  or  appears  according  to  the  tenor  of  his 
recognizance,  and  the  complainant  does  not  apj)ear  to  ask 
its  continuance,  the  court,  as  a  matter  of  course,  releases 
liim  from  custody,  or  discharges  the  recognizance,  as  the 
case  may  be.  If,  however,  the  complainant  does  appear, 
and  seeks  a  continuance  of  the  proceeding,  then  the  court, 
on  a  full  examination  of  the  evidence,  as  well  on  behalf 
of  the  complainant  as  the  party  accused,  may  release  him, 
or  discliaige  the  recognizance,  or  order  the  proceeding  to 
be  continued.' 

'  Hyile  r.  Greuch.  (i'l  Md.  "»77. 

Fur  tonns  of  proceedings  see  Latrobe  Just.  cli.  Ki. 


CHAPTP]K   VII. 
The  Indictment. 

§  70. — Prosecution  By. — If  a  statute  eujoiiis  an  act  to 
be  doue  witliout  pointing  out  any  mode  of  punishment,  an 
indictment  will  lie  for  disobeying  the  injunction  of  the  leg- 
islature;' but  an  indictniout  does  not  lie  upon  a  statute 
which  creates  a  new  offense  and  prescribes  a  particular 
remedy. - 

§  77. — Formal  Allegations. — Prosecutions  against  offen- 
ders are  relieved  from  a  number  of  the  technical  retiue- 
nieuts  existing  at  common  law  by  the  following  statutory 
provisions: 

^o  indictment  or  presentment  for  felony  or  mis- 
demeanor shall  be  quashed,  nor  shall  any  judgment 
upon  any  indictment  for  ahy  felony  or  misdemeanor, 
or  upon  any  presentment,  whether  after  verdict,  by 
confession  or  otherwise,  be  stayed  or  reversed  for 
the  want  of  a  proper  or  perfect  venue,  when  the 
court  shall  appear  by  the  indictment,  inquisition  or 
presentment,  or  by  the  statement  of  the  venue  in 
the  margin  thereof,  to  have  jurisdiction  over  the 
offense,  nor  for  the  omission  or  misstatement  of  the 
title,  occupation  or  degree  of  the  defendant  or  other 
person  or  persons  named  in  the  said  indictment, 
in(|uisition  or  presentment,  nor  for  the  want  of  the 
averment  of  any  matter  unnecessary  to  be  proved, 
nor  for  the  omission  of  the  words  "asai)i)ears  by  the 
record, "or  of  the  words  "with  force  and  arms," 
nor  for  the  insertion  of  the  words  ''against  the  form  of 
the  statute,"  instead  of  "against  the  form  of  the 
statutes,"  or  vice  versa,  nor  for  omitting  to  state  the 
time  at  which  the  offense  was  committed,  in  any 

'  Keller  v.  State,  11  Md.  525,  536. 
m.  l:  Wright,  1  Burr.  543. 


THE   INDICTMENT.  73 

case  where  time  is  nut  of  tlie  essence  of  the  offense, 
nor  for  stating'  the  time  imperfectly,  nor  for  stating- 
the  offense  to  have  been  committed  on  a  day  sul)se- 
<|uent  to  the  linding  of  tlie  indictment  or  making 
the  presentment,  or  on  an  impossible  <lay,  or  on  a 
day  that  never  happened,  or  by  reason  of  any  mere 
defector  imperfection  in  matters  of  form  which  shall 
not  tend  to  the  prejudice  of  the  defendant,  nor  for 
any  matter  or  cause  which  might  have  been  a  sub- 
ject of  dcMnurrer  to  the  indictment,  inquisition  or 
presentment.' 

It  shall  be  sufficient  in  any  indictment  for  forg- 
ing, uttering-,  disposing  of,  putting  off  or  passing  anj- 
instrument  whatsoever,  or  for  obtaining-  any  i)ropert3' 
by  false  pretenses,  to  allege  that  the  defendant  did 
the  act  with  intent  to  defraud,  without  alleging  the 
intent  of  the  defendant  to  be  to  defraud  any  partic- 
ular person;  and,  on  the  trial  of  any  of  the  offenses 
in  this  section  mentioned,  it  shall  not  be  necessary  to 
prove  an  intent  on  the  part  of  the  defendant  to  de- 
fraud any  particular  person,  but  it  shall  be  sufficient 
to  prove  that  the  defendant  did  the  act  charged  with 
an  intent  to  defraud.  In  any  indictment  for  forging, 
altering,  putting  off,  pafjsing,  stealing-,  embezzling-, 
destroying,  or  for  obtaining  by  false  pretenses  any 
instrument,  it  shall  be  sufficient  to  describe  such 
instrument  by  any  name  or  designation  by  which 
the  same  may  be  usually  known,  or  bj'  the  purport 
thereof,  without  setting-  out  a  copy  or  lac-simile 
thereof,  or  otherwise  describing  the  same.  In  all 
other  cases,  whenever  it  shall  be  necessary  to  make 
any  averment  in  any  indictment  as  to  any  instru- 
ment, whether  the  same  consists  wholly  or  in  part 
of  writing,  print  or  tigures,  it  shall  be  sufficient  to 
describe  such  instrument  by  any  name  or  designa- 
tion by  which  the  same  may  be  usually  known  or  by 
the  puiport  thereof,  without  setting  out  any  copy  or 
fac-simile  of  the  whole  or  any  any  j)art  thereof.- 


'  Code,  art.  27,  sec.  286. 
nb.,  sec.  291. 


74  CRIMINAL    LAW. 

Fnder  these  provisions  iDrtictineuts  have  been  upliehl  in 
a  number  of  instances,  notwithstanding  alleged  omissions 
and  <lefects,  that  would  have  been  fatal  at  common  law. 
Objections  have  been  overruled  in  relation  to  the  want  of 
a  venue  in  the  body  of  the  indictment,  it  being-  stated  in 
the  margin;  ^  misstatement  of  the  condition  or  degree  of  the 
defendant;-  matters  that  should  have  been  urged  upon 
demurrer,"  it  being,  however,  held,  that  the  defendant  has 
an  unconditional  right  to  withdraw  his  i)lea  and  demur.* 

§  78. — Certainty  of  Allegation. — Certainty,  to  a  reason- 
able extent,  is  au  essential  attribute  of  all  pleading, 
both  civil  and  criminal,  but  is  more  especially  neces- 
sary in  the  latter,  where  conviction  is  followed  by  penal 
consequences.  One  of  its  objects  is  notice  to  the  party  of 
the  nature  of  the  charge,  against  which  he  is  to  come  pre- 
l)ared  to  defend  himself;  and  it  is  also  necessary,  not  only 
that  the  offense  may  be  displayed  upon  the  record,  so  as 
to  enable  the  court  to  pronounce  the  sentence  of  the  law, 
but  to  enable  the  party  to  defend  himself  against  a  second 
prosecution  for  the  same  crime,  by  pleading  a  prior  acquit- 
tal or  conviction.^  It  is  a  general  rule,  that  the  special 
matter  of  the  whole  fact  should  be  set  forth  in  the  indict- 
ment with  such  certainty  that  the  otfense  may  judicially 
appear  to  the  court,  and,  as  it  must  contain  a  specific  de- 
scription of  the  offense,  it  is  not  good  if  it  only  state  a  con- 
clusion of  law.*  Xothing  material  may  betaken  by  intend- 
ment or  im[)lication,  but  all  the  circumstances  necessary 
to  constitute  the  offense  must  be  set  out  in  the  indict- 
ment." 


'  Wedge  V.  State,  13  Md.  232. 

*  Hammond  v.  State,  14  lb.  13").  Cf.  State  v.  Hughes,  2  H.  &  McH. 
479. 

'Cochrane  v.  State,  6  Md.  400;  Kellenbeck  r.  State,  10  lb.  431: 
Cowman  v.  State,  12  lb.  2r)0:  State  r.  Reed,  lb.  2(i3;  Davis  i:  State,  39 
lb.  355;  Maguire  v.  State,  47  lb.  485;  Costley  c.  State,  48  lb.  175; 
State  V.  Wade,  55  lb.  39;  Foote  v.  State,  59  lb.  264. 

••  Cochrane  v.  State,  swpra. 

*  State  V.  Nutvvell,  1  G.  54;  State  r.  Bixler,  62  lb.  354;  Stewart  iv 
State,  lb.  412. 

"State  V.  Scribner.  2  G.  &  J.  246;  State  r.  Bixler,  supra. 
'State  r.  Hodges,  55  Md.  127.     Cf.  'Jones  v.  State,  68  lb.  613. 


THE    INDICTMENT.  ii> 

§  79. — Names  of  Third  Persons. — In  acconlance  with 
tlie  doctrine  ie(iiiiring"  certainty  in  tlic  indictnicnt,  it  lias, 
in  a  number  of  instances,  been  held  necessary  to  set  out  the 
names  of  third  persons.  Where  a  statute  prohil>it(Ml  the 
sale  of  li(iuor  to  slaves  without  the  consent  of  the  master, 
an  indictment  for  its  violation  was  held  to  be  defective  for 
omittiny:  ti»e  name  of  the  slave  and  that  of  the  master;^ 
an  indictment  charging"  the  sale  of  liquor  on  Sunday  must 
allege  the  name  of  the  person  to  wiiom  the  same  was  sold,* 
and  an  indictment  for  the  sale  of  merchandise,  in  viola- 
ti(ui  of  the  license  laws,  must  set  forth  the  name  of  the  per- 
son to  whom  the  sale  was  nuide.^  The  sale  of  liquor  with- 
out license,  or  to  minors,  or  on  a  Sunday  or  election  day  to  a 
particular  person  is  an  oti'ense  in  this  State;  each  sale  is  a 
separate  offense  and  the  party  may  be  indicted  for  each; 
but  the  case  is  different  upon  an  indictment  against  a 
register  of  voters  for  making  out  and  publishing  a  false 
list  of  voters  stricken  from  the  registry.  The  indictment 
need  not  si)ecify  the  names  of  the  voters  alleged  to  have 
been  ])ublished  in  the  list  ns  stricken  from  the  registry. 
Such  list  becomes  false  by  including  therein  the  uames, 
whether  few  or  many,  of  the  voters  who  had  not  been 
stricken  off.  The  offense  is  one  and  entire,  and  there  can- 
not be  se[)arate  indictments  for  each  name  thus  wronglully 
included.' 

§  80. — Allegation  of  Circumstances  Constituting  Ille- 
gality.—  Where  the  act  charged  is  not  in  itself  necessarily 
unlawful  or  criminal,  but  becomes  so  by  its  peculiar 
circumstances  and  relations,  all  the  matters  must  be  set 
forth  in  which  its  illegality  consists.  Thus,  the  wilful 
obstruction  of  a  road  or  way  constitutes  an  indictable 
offense  only  when  the  road  or  way  is  i)ublic  and  the 
obstruction  tends  to  the  inconvenience  of  the  common 
right  to  use  it;  hence,  an  indictment  for  obstructing  a 
highway  which,  in  one  count,  described  the  obstructed 
road  as  "a  common   highway,  leading   from  Sniiih  St;iiidi- 


'  State  V.  Nutvvell,  1  G.  54. 
-Capritz  r.  State.  I  .^Kl.  569. 
^Spielmau  r.  State.  27  lb.  520. 
^Mincher  r.  State,  fiG  Ih.  227. 


76  CEIMINAL   LA.W. 

ford's  gate  toward  the  Baltimore  and  Philadelphia  turn- 
pike, to  the  house  known  as  Berry's  house,"  and,  in 
another  count,  as  "a  common  highway  leading  from  Sarah 
Standiford's  gate  toward  the  Baltimore  and  Philadelphia 
turnpike,"  was  adjudged  defective.  It  was  held,  that  the 
connection  of  the  road  with  some  other  common  thorough- 
fare, by  means  of  which  the  i)ubli(5  could  have  access  to  it, 
was  a  necessary  element  of  the  offense  charged,  and  it 
should  have  been  shown  with  certainty;  the  indictment 
should  have  shown  that  the  road  obstructed  connected 
with  and  was  accessible  from  a  public  highway.^  But  it  is 
only  where  the  act  charged  is  not  in  itself  unlawful,  but 
becomes  so  by  other  things  connected  with  it,  that  the 
facts  in  which  the  illegality  consists  must  be  set  out. 
Therefore,  where  the  giving  away  of  intoxicating  liquor 
on  election  days  is  made  an  oflense  by  statute,  an  indict- 
ment charging  the  defendant,  in  the  language  of  the 
statute,  with  unlawfully  giving  away  whiskey,  without 
setting  forth  the  facts  wiiich  make  the  giving  unlawful,  is 
sufficient,  it  not  being  necessary  to  state  matter  of  evidence, 
unless  it  alter  the  offense.^  Upon  the  same  principle  it 
was  held,  that,  in  an  indictment  for  an  assault  with  intent 
to  murder,  it  is  not  necessary  to  state  the  instrument  or 
means  made  use  of  bj^  the  assailant  to  effectuate  the 
murderous  intent.  The  means  of  effecting  the  criminal 
intent  or  the  circumstances  evincive  of  the  design  with 
which  an  act  was  done,  are  considered  to  be  matters  of 
evidence  for  the  jury  to  demonstrate  the  intent,  and  not 
necessary  to  be  incorporated  in  an  indictment.^ 

§  81. — Time  and  Place. — Time  and  place  must  be  added 
to  every  material  fact  in  an  indictment;  that  is,  every 
material  fact  stated  in  an  indictment  must  be  alleged  to 
have  been  done  on  a  particular  day  and  at  a  particular 
place.  It  is,  in  general,  in  relation  to  time,  requisite  to 
state  that  the  defendant  con)mitted  the  offense  for  which 
he  was  indicted  on  a  specific  day  and  year.*    If  an  offense 

'  State  V.  Price,  21  Md.  448. 

'^Cearfoss  i:  State.  42  lb.  403. 

3  State  c.  Dent,  3  G.  &  J.  «. 

^ State  r.  Brown,  24  S.  C.  224.     Cf.  Jones  r.  State,  68  Md.  613. 


THE   INDICTMENT.  77 

consists  in  doinjj:  a  tiling  on  Sunday,  the  indictment,  in 
addition  to  the  day  of  the  month  and  year,  must  aver  that 
it  was  oil  Sunday,  and  nor  merely  mention  a  day  found  to 
be  Sunchiy  hy  the  calen<lar.  If  the  <hiy  of  the  week  is  thus 
jjroperly  set  out,  the  indictment  will  be  j;ood,  thou'^h  the 
day  of  the  month  given  in  it  falls  on  some  other  day  of  the 
week.' 

§  Sti. — Matters  Unknown  to  Grand  Jury. — If  the  grand 
jury  is  informed  of  the  material  facts  of  an  offense,  but 
not  of  all  its  identifying  circumstances  and  methods,  it 
may  make  averment  of  the  former  according  to  its  know- 
ledge and  excuse  the  not  setting  out  of  the  latter  by 
alleging  that  they  are  to  the  jurors  unknown;  but  the  want 
of  description  is  only  excused  when  the  name  cannot  be 
known:  and,  if  the  grand  jurors  cannot  state  a  fact  neces- 
sary for  the  defendant  to  know  in  order  to  make  his 
defense,  they  cannot  indict  him." 

§  S'.i. — Technical  Words. — Where  the  offense  charged, 
a  misdemeanor,  is  an  offense  at  common  law,  and  is  it-self 
manifestly  illegal,  the  averment  that  it  was  done  unlairfulli/ 
is  not  necessary.  But  the  mere  receipt  of  stolen  goods, 
knowing  them  to  be  stolen,  was  not  per  se  an  offense  at 
common  law,  because  the  owner  may  lawfully  receive  back 
his  own  goods,  knowing  them  to  be  stolen,  provided  there 
be  no  agreement  to  favor  the  thief:  or  one  may  lawluUv 
receive  stolen  property  for  the  purpose  of  keeping  the 
goods  for  the  owner.  Accordingly  it  was  held  necessary, 
in  an  indictmment  for  this  offense,  to  aver  that  the  prop- 
ertv  was  unlawfullv  received.^ 

In  the  case  of  an  indictment  for  arson,  the  offense  sliould 
be  charged  to  have  been  <i(me  icilfutly  or  roluntarily  and 
maliciously,  as  well  as  feloniously,'  and  that  the  house  was 
bvrned.-' 


'  Hoover  r.  Stale.  56  Md.  584. 

-  1  Bishop  Cr.  Proc.  U  546-55;:{:  Reg.  r.  Stroud.  'J  Mcody.  270:  S.  C. 
1  Car.  &  K.  1S7;  State  r.  Nutwell,  1  G.  54:  Capritz  c.  State.  1  Md. 
569;  Spiebiuin  /-.  State,  27  lb.  520. 

'State  /•.  Hodges.  55  Md.  127. 

*  Kelleubeck  r.  State,  10  Md.  431. 

*  Cochrane  r.  State,  6  Md.  400. 


78  CRIMINAL   LAW. 

It  is  improper,  in  an  indictment  for  a  misdemeanor,  to 
aver  that  the  act  was  (\ouefeloniou.sli/-^  but  upon  an  indict- 
ment lor  a  felony  such  arerment  is  necessary," 

§  84. — Surplusage. — Every  fact  and  circumstance  laid  in 
an  indictment  which  is  not  a  necessary  ingredient  in  the 
offense  may  be  rejected  as  surplusage,  also,  if  there  be  any 
defect  in  the  manner  of  stating-  such  matter,  the  defect  will 
not  vitiate  the  indictment.'  But  matter  unnecessarily 
stated  in  an  indictment  Avill  render  it  bad,  if  it  shows  that 
no  offense  was  committed,  or  that  otherwise  the  prosecution 
is  not  maintainable.     Such  surplusage  cannot  be  rejected,* 

§  85. — Indictments  Upon  Statutes. — In  indictments  for 
statutory  crimes  it  is  ordinarily  sufficient  to  describe  the 
offense  in  the  words  of  the  statute,  and,  if  the  defendant  in- 
sists upon  greater  particularity,  it  is  for  him  to  show  that, 
from  the  obvious  intention  of  the  legislator,  or  the  known 
l^rinciples  of  law,  the  case  falls  within  some  exception  to 
such  general  rule.  But  few  exceptions  to  this  rule  are 
recognized.^  Where  the  words  of  the  statute  are  descrip- 
tive of  the  offense,  it  is  necessary  that  the  defendant  should 
be  brought  within  all  the  material  words  of  the  statute." 
The  statutory  crime  must  be  laid  with  reasonable  certainty 
according  to  the  true  meaning  of  the  law,  and,  to  this  end, 
it 'sometimes  becomes  necessary  to  do  more  than  merely 
charge  the  offense  in  the  words  of  the  statute.' 

If  there  be  any  exception  contained  in  the  same  clause  of 
the  act  which  creates  the  oflense,  the  indictment  must  show 
negatively  that  the  defendant  or  subject  of  the  indictment 
does  not  come  within  the  exception;  but,  where  the  charge 
preferred,  ex  natura  rei,  as  conclusively  imports  a  negative 
of  the  exception  as  if  such  negative  had  been  in  express 

'  Black  V.  State,  2  Md.  376;  Barber  v.  State,  50  lb.  161. 

=2  State  V.  Hodges,  55  Md.  127. 

■''Rawlings  v.  State,  2  Md.  201;  Richardson  v.  State,  66  lb.  205. 

*  1  Bishop  Cr.  Proc.  HB2. 

'Parkinson  i:  State,  14  Md.  1«4,  198;  Cearfoss  v.  State,  42  lb.  403; 
Gibson  i:  State,  54  lb.  447:  Mincher  v.  State,  66  lb.  227,  234. 

"State  V.  Elborn,  27  Md.  483;  Kearney  v.  State,  48  lb.  16. 

'  U.  S.  V.  Reed,  1  Low.  232;  Duvall  v.  State,  6  H.  &  J.  9;  Bode  r. 
State,  7  G.  326. 


THE    INDICTMENT.  79 

terms,  this  lulc  docs  not  apply.'  Where,  after  general 
words  of  ]»rohil)itioii,  iiii  e.veeptioii  is  created  in  a  subse- 
quent clause  or  section,  it  must  be  interposed  by  the  ac- 
cuse<l  as  a  matter  of  defense. - 

§  80. — The  Conclusion. — Allindictments  for  offenses  foi- 
bidden  by  any  statute  or  statutes,  or  for  otlenses  the  jiunish- 
mentof  which  is  contained  in  the  same  clau.se  of  any  statute 
with  the  prohibition  of  the  offense,  may  conclude  as  for 
off'enses  at  common  law:  and  where  any  off'en.se  which  is  a 
misdemeanor  at  comn»on  law  may  have  been  made  a  felony 
by  statute,  the  misdemeanor  shall  not  be  merged  in  the 
felony,  but  the  indictment  may  contain  counts  for  the  said 
felony  and  also  for  the  misdemeanor.^ 

Formerly,  where  the  offense  was  created  by  one  statute 
and  the  punishment  prescribed  or  atKxed  by  another,  the 
conclusion  was  required  to  be  contra  formam  statuton(m;'Sind 
where  a  statute  created  an  offense  which  did  not  exist  at 
common  law,  or  changed  the  nature  or  degree  of  an  offense 
existing  at  common  law,  it  was  held  that  it  must  conclude 
contra  formam  statuti,  but  that,  if  the  statute  only  directed  a 
different  mode  of  punishment  for  a  common-law  offense,  the 
couclusion  might  be  coM^/Yt^rtcem.'  All  indictments  must 
conclude,  "against  the  peace,  government  and  dignity  of 
the  IState.'"'^  In  indictments  for  common-law  offenses  all 
beyond  this  is  surplusage." 

§  87. — Joinder  of  Counts  and  Election. — An  indictment 
containing  counts  for  felony  and  misdemeanor  was  held  to 
be  good  at  common  law.'  It  is  quite  common  to  insert 
several  counts  in  an  indictment,  stating  the  occurrence  in 
different  terms,  that  the  indictment  may,  at  the  trial,  cor- 


'  State  r.  Price,  12  G.  &  J.  260:  Hays  r.  State,  40  Md.  633;  Gibsou 
r.  State,  54  lb.  447. 

*Bode  r.  State.  7  G.  326:  Rawlings  r.  State,  2  Md.  201;  Barber  r. 
State,  r)0  lb.  161;  State  r.  Nicholson,  67  lb.  1. 

•■'  Code,  art.  27,  sec.  287. 

^  State  v.  Cassel,  2  H.  &  G.  407. 

^  State  r.  Evans,  7  G.  &  J.  290. 

"  Const.,  art.  14,  sec  13.  As  to  indictments  for  violation  of  muni- 
cipal ordinances,  see  Code,  art.  36,  sec.  i. 

•  Richardson  r.  State,  66  Md.  20.). 

'*Burk  r.  State,  2  H.  &  J.  426;  State  r.  Sutton,  4  G.  494:  Wheeler 
r.  State,  42  Md.  563. 


so  CRIMINAL    LAW. 

respond  witb  the  proof,  for  tlie  State  eannot  always  know 
what  the  evidence  will  be.  This  mode  of  pleading  apprises 
the  prisoner  of  the  accusation  in  more  precise  language, 
and,  at  the  same  time,  aids  the  jury  in  finding  their  verdict. 
But,  as  it  is  liable  to  abuse,  the  law  allows  the  prisoner, 
where  the  nature  of  the  case  will  permit,  to  require  the 
l)rosecutor  to  elect  on  which  count  or  counts  he  will  i)roceed, 
and  in  some  cases,  he  may  demur.'  Where  the  indictment 
contains  several  connts,  charging  two  or  more  distinct  of- 
fenses, the  court  will,  on  motion, order  it  to  be  quashed,  or 
compel  the  prosecutor  to  elect  on  which  charge  he  will 
proceed;  but  such  election  will  not  be  required  to  be  made 
when  several  counts  are  introduced  solely  for  the  purpose 
of  meeting  the  evidence  as  it  may  transpire,  the  charges 
being  substantially  for  the  same  offense. =  The  ai^plication, 
however,  is  addressed  to  the  discretion  of  the  court,  and 
the  determination  thereui)on  is  not  the  subject  of  review  on 
appeal  or  writ  of  error. ^ 

§  88. — Statement  of  Ownership  or  Possession. — In  any 
indictment  for  any  felony  or  misdemeanor  wherein  it  shall 
be  requisite  to  state  the  ownership  or  possession  of  any 
])roperty  whatsoever,  whether  real  or  personal,  which  shall 
belong  to  or  be  in  the  possession  of  more  than  one  person, 
whether  such  persons  be  partners  in  trade,  joint  tenants, 
parceners,  tenants  in  common  or  trustees,  it  shall  be  suffi- 
cient to  name  one  of  such  persons  and  to  state  such  property 
to  belong  to  or  be  in  i)Ossession  of  the  person  so  named 
and  another  or  others,  as  the  case  may  be;  and  whenever,  in 
any  indictment  for  any  felony  or  misdemeanor,  it  sliall  be 
necessary  to  mention,  for  any  purpose  whatever,  any  ]iart- 
ners,  joint  tenants,  parceners,  tenants  in  common  or  trus- 
tees, it  shall  be  sufficient  to  describe  them  in  the  manner 
aforesaid.^ 

§  80. — Amendment. — Whenever  the  misnomer  of  any 
defendant  or  defendants  is  pleaded  in  abatement  to  anj* 
indictment  in  any  of  the  courts  of  this  State  having  crimi- 


'  Manly  r.  State,  7  Md.  135. 

2 State  V.  Bell,  27  Md.  675;  State  v.  McNally,  55  lb.  559. 

^  State  V.  Bell,  svpra. 

"  Code,  art.  27,  sec.  285. 


THE   INDICTMENT.  81 

iial  jurisdiction,  it  shall  Ix' law  liil  for  the  State's  attorney 
prosociitinji'  tlie  same,  or  otlici-  jx^'son  i)rosecntiii<;"  for  the 
State,  on  applieation  to  the  eonrt,  to  amend  the  said  in- 
dictment l»y  inserting,  in  the  jihice  ol'  the  name  or  names 
so  erroneously  set  forth  in  the  said  indictment,  the  true 
name  or  names  of  such  i)arty  or  parties,  as  disclosed  in  the 
said  i)Iea  of  abatement;  and  it  shall  be  the  duty  of  the  clerk 
of  the  court  to  endorse  the  amendment  and  to  enter  the 
said  case  upon  the  docket  of  the  court,  according  to  the 
true  nan»e  or  names  of  the  party  or  parties  so  indicted/ 

Whenever  it  shall  ai)i)ear,  alter  a  jury  is  s\\orn  on  anj' 
indictment,  in  any  ol'  the  courts  of  this  State  having 
criminal  Jurisdiction,  that  the  name  or  names  of  any  jiersou 
or  persons  orher  than  the  defendant  or  defendants  has  or 
have  been  erroneously  set  forth  in  said  indictment,  it  shall 
be  lawful  for  the  State's  attoruej',  or  other  person  i)rose- 
cuting  for  the  State,  on  api)lication  to  the  court,  to  amend 
the  said  indictment  according  to  the  i)roof  in  the  said  cause; 
and  it  shall  be  the  duty  of  the  court  in  which  such  trial 
shall  be  had  to  [)roceed  with  the  trial  of  the  said  indict- 
ment so  amended,  unless  oath  shall  be  made  by  the  party 
or  i)arties  so  charged  that  the  said  amendment  or  amend- 
ments has  or  have  disclosed  a  fact  or  facts  to  him  hereto- 
fore unknown,  or  that  the  immediate  proceeding  with  the 
trial  of  the  said  indictment  would  tend  to  his  prejudice, 
and,  in  such  case,  it  shall  be  the  duty  of  the  court  to  dis- 
charge the  jury  sworn  in  the  said  case  without  a  veidict, 
and  to  posti)oue  the  trial  thereof  for  such  reasonable  time 
as  the  court  shall  determine,  or,  in  case  the  said  indictment 
is  submitted  to  the  court  without  the  interventionof  a  jury, 
it  shall  be  lawlul  for  such  amendment  to  be  made  as  afore- 
sai<l  and  also  to  postjione  the  hearing  of  the  said  case  for 
such  time  as  it  shall  determine  to  be  necessary. - 

An  indictment,  being  the  linding  of  a  grand  jury  ui)on 
oath,  cannot,  except  in  cases  where  the  law  has  specially 
authorized  such  proceeding,  and  in  matters  of  form  which 
are  not  matters  of  substance,  be  amended  by  the  court, 
"without  the  concurrence  of  the  giand  in(iuest  by  whom  it 


'  Code,  an.  27,  sec.  283;  Parkinson  r.  State,  14  Md.  184. 
-lb.,  sec.  284;  Parkinson  c.  State,  stipra. 

G 


82  CRIMINAL  LAW. 

was  presented.  In  matters  of  form  which  are  not  matters 
of  substance  an  amendment  may  be  made  by  the  court,  or 
under  its  direction,  at  any  time  before  the  commencement 
of  the  trial. ^ 

The  case  of  Byers  v.  State-  arose  upon  an  indictment  for 
bigamy.  The  grand  jury  returned  the  indictment,  duly 
endorsed  by  the  foreman,  "true  bill,"  on  the  20th  day  of 
Xovember,  1884.  On  the  next  following  day,  the  foreman 
and  the  State's  attorney  came  to  the  Court  and  called  at- 
tention to  the  fact  that  the  name  of  the  party  to  whom 
the  accused  was  alleged  to  have  been  married  the  second 
time  had,  through  inadvertence,  been  omitted  from  the  in- 
dictment, although  a  blank  space  had  been  left  for  that 
purpose,  and  made  the  request  to  correct  this  omission  by 
inserting  the  name  of  "Jennie  V.  Miller."  The  Court, 
however,  directed  the  foreman  to  go  to  the  grand-jury  room 
and  make  the  matter  known  to  his  fellow  jurors,  so  that  the 
grand  jurors  might  appear  at  the  bar  of  the  Court  and 
make  formal  application  for  that  j)urpose.  This  was  done, 
and  soon  afterwards,  on  the  same  day,  the  grand  jury  ap- 
peared at  the  bar  of  the  Court  and  through  their  foreman 
requested  the  return  of  the  indictment  for  the  ])urpose  of 
tilling  up  the  blank  therein  with  the  name  of  Jennie  Y. 
Miller,  and,  upon  this  request,  the  Court  directed  the  clerk 
to  return  the  indictment  to  the  foreman  for  the  purpose 
aforesaid.  The  indictment  was  then  placed  in  the  hands 
of  the  foreman  in  the  presence  of  his  fellow^  jurors  in  open 
court.  The  grand  jury  then  retired  to  their  room  and  sub- 
sequently, on  the  same  day,  returned  the  same  indictment 
again  to  the  bar  of  the  Court  and  delivered  it  to  the  Court, 
with  the  name  of  the  said  "Jennie  V.  Miller"  inserted  in 
the  space  left  blank,  and  the  Court  received  it  and  handed 
it  to  the  clerk  endorsed  as  aforesaid.  These  proceedings 
were  sustained  upon  appeal.     The  Court  of  Appeals  said: 

"  It  is  settle<l  law  everywhere  that,  when  a  grand  jury  is 
in  session,  they  and  their  proceedings  are  under  the  gen- 
eral superintendence  and  control  of  the  court,  and  that  the 
court  may,  at  any  time,  recommit  to  them  an  imperfect 

'  Hawthorn  r.  State,  56  Md.  530. 
2  63  Md.  207. 


THE    INDICTMENT.  83 

liiHliiiu.'  Ill  this  State,  tlic  iiiodc  <»l' ictiiriiiii;^' lucsoiitmciits 
and  hills  of  iiidictiiKMit  hy  grand  juiies  and  tiling  tln-ni  hy 
the  clerks  is  not  regulate*!  by  statute,  hut  is  governed  bj' 
unilbrni  and  long  established  usage  and  practice.  Accord- 
ing to  this  practice,  the  grand  jury,  when  they  are  ready 
to  make  a  leturn,  come  into  open  court  with  their  ibieman, 
theii-  entrance  being  announced  by  a  bailiff,  and  the  clerk 
then  calls  them  severally  by  their  names  and  says,  '  Gen- 
tlemen, liave  you  agreed  upon  any  presentments  or  bills  of 
in<lictmeut  f  The  response  being  in  the  aflirmative,  they 
are  then  requested  by  the  clerk  '  to  ])resent  them  to  the 
court,'  and,  n])on  the  delivery  of  them,  he  says,  'Are  you 
content  the  court  shall  amend  matter  of  form,  altering  no 
matter  of  substance  without  your  privity  in  these  bills  you 
have  found?'  To  this  they  give  their  assent  and  then 
return  to  their  room.  When  the  papers  have  been  thus 
delivered  to  the  court,  the  judge  examines  them  and,  unless 
they  are  obviously  erroneous,  delivers  them  to  the  clerk, 
who  thereupon  files  them  and  makes  tlie  ])roper  entries  on 
the  criminal  docket,  and  they  then  become  pait  of  the 
records  of  the  court.  If,  however,  the  judge  discovers  an 
obvious  mistake  or  error  in  any  such  paper,  instead  of 
delivering  it  to  the  clerk,  he  sends  for  the  foreman  of  the 
grand  jury,  points  out  to  him  the  error,  informs  him  how  it 
can  be  corrected,  and  delivers  it  to  him,  in  order  that  it  may 
be  thus  corrected.  The  foreman  then  takes  it  to  the  grand 
jury  room,  and  there,  in  the  i>resence  and  with  the  assent 
of  his  fellow  jurors,  makes  the  necessary  correction,  and, 
on  a  subsequent  occasion,  the  paper  thus  amended  is 
returned  in  the  usual  way.  The  preliminary  examination 
thus  giveu  by  the  judge  to  a  bill  of  indictment  is  usually 
confined  to  ascertaining  whether  it  bears  the  ])ioi»er  en- 
dorsement of  "True  I>ill,'  signed  by  the  foreman.  The 
body  of  the  indictment  is  rarely  looked  at,  because  the 
judge  assumes  that  this  has  been  jjrojjcrly  framed  by  the 
State's  attorney,  and  such  a  defect  as  existed  in  the  body 
of  this  indictment  is  a  very  unusual  one.  If  the  judge  to 
whom  it  was  delivered   by  the  foreman  of  the  grand  jury 


'Wharton  Cr.  PI.  &  Prac.  ?  376:    Archbold's  Cr.  Pr.  &  PI.  211, 
11.  1 ;    Low's  Case,  4  Me.  439,  i')i). 


84  CRIMINAL   LAW. 

bad  opened  it  and  had  discovered  that  the  blanks  had  not 
been  properly  filled  up,  it  would  have  been  his  dnty,  in- 
stead of  handing  it  down  to  the  clerk,  to  have  returned  it 
to  the  foreman  for  correction  in  the  mode  above  indicated. 
The  defect,  however,  was  not  discovered  until  the  next  day, 
and  after  the  indictment  had  been  delivered  to  the  clerk 
and  filed  by  him.  In  this  state  of  case,  no  doubt,  the  more 
regular,  formal  and  safe  course  would  have  been  for  the 
State's  attorney  to  have  had  this  indictment  cpiashed  and 
to  have  framed  a  new  one  and  submitted  it  to  the  grand 
jury  for  their  approval.^  But  this  was  not  done,  and  the 
public  and  formal  proceeding  set  out  in  the  statement  made 
by  the  learned  judge  of  the  court  below  was  adopted  in  lieu 
thereof.  The  grand  jury  came  into  court  while  it  was  in 
open  session  and,  through  their  foreman,  made  a  public 
and  formal  request  that  the  indictment  should  be  returned 
to  them  for  the  purpose  of  properly  filling  up  the  blanks 
left  in  it,  and  the  court  thereupon  gave  a  formal  and 
express  direction  to  the  clerk  to  return  the  indictment  to 
the  foreman  for  this  jnirpose.  The  indictment  was  then 
placed  in  the  hands  of  the  foreman,  in  the  presence  of  his 
fellow  jurors  and  in  open  court.  Tlie  grand  jury  then 
retired,  and,  on  the  same  day,  returned  the  same  bill,  with 
the  blanks  properly  filled  up  and  bearing  the  same  endorse- 
ment of  'True  Bill,'  signed  by  the  foreman,  and  delivered 
it  to  the  court,  and  the  judge  thereupon  handed  it  to  the 
clerk.  All  that  was  thus  done  was  done  in  open  court  and 
with  the  court's  express  sanction  and  direction.  It  was  the 
duty  of  the  clerk  to  have  entered  these  proceedings  upon 
the  minutes  and  as  part  of  thie  record  and  proceedings  of 
the  court  on  the  day  on  which  they  occurred,  an<l  if  he 
failed  to  do  so,  it  was  competent  for  the  court  to  have  had 
the  minutes  of  its  proceedings  corrected  in  this  respect. 
What  the  grand  jury  thus  did  was,  in  our  opinion,  substan- 
tially the  same  thing  as  finding  and  returning  a  new  indict- 
ment in  the  form  in  which  the  old  indictment  thus  corrected 
stood.  At  all  events,  we  discover  in  these  proceedings  no 
such  defect  as  would  justify  the  court  in  pronouncing  the 

'  1  Chitty  Cr.  L.  325;  2  Hale,  lf32:  Bacou  Abr.,  Indictment.  D. 


TJIE   INDICTMENT.  85 

iiulictiiH'iit  thus  treated  and  acted  upon  by  the  <:fraiid  jury 
a  nullity." 

§  00. — Specific  Offenses. — The  question  of  thesutticiency 
of  the  allegatious  iu  indictments  for  various  oflenses,  both 
at  common  law  and  under  statutes,  will  be  furtlier  consid- 
ered under  titles  relating  to  specitic  offenses. 


* 


CHAPTER  YIIl. 

The  Trial  and  its  Incidents. 

§  91. — Jurisdiction. — Ifany  person  be  felouiously  stricken 
or  poisoned  in  one  county,  and  die  of  the  same  strolvC  or 
poison  in  another  county,  within  one  year  thereafter,  the 
offender  shall  be  tried  in  the  court  within  whose  jurisdic- 
tion such  county  lies  where  the  stroke  or  poison  was  given; 
and,  in  like  manner,  an  accessory  to  murder  or  felony  com- 
mitted shall  be  tried  by  the  court  within  whose  jurisdiction 
such  person  became  accessory.* 

If  a  person  be  feloniously  stricken  or  poisoned  on  the 
waters  of  Chesapeake  Bay,  and  not  within  the  body  of  any 
county,  and,  within  one  year  thereafter,  die  of  the  same 
stroke  or  poison,  withiu  any  county  of  this  State;  or,  if  any 
person  be  feloniously  stricken  or  poisoned  in  any  county  of 
this  State,  and,  within  one  year  thereafter,  die  of  the  same 
stroke  or  poison,  on  the  waters  of  the  Chesapeake  Bay,  and 
not  withiu  the  body  of  any  county,  the  offender,  his  aiders, 
abettors  and  comforters,  or  any  person  accessory  thereto, 
shall  be  tried  in  the  court  within  whose  jurisdiction  such 
county  lies  where  the  death  happened  or  the  stroke  or  poison 
was  given. - 

Any  person  who  shall  commit  any  crime,  offense  or  mis- 
demeanor upon  the  waters  of  the  Chesapeake  Bay,  within 
the  limits  of  this  State  and  without  the  body  of  any  county 
thereof,  and  all  aiders,  abettors,  comforters  and  accessories 
thereof  and  thereto,  may  be  indicted  and  tried  in  any  court 
of  this  State  having  jurisdiction  of  similar  crimes,  offenses 
and  misdemeanors,  of  the  county  in  which  he  may  be  ar- 
rested or  into  which  he  may  be  first  brought.^ 

Any  person  who  may  commit  any  indictable  offense  on  a 
steamboat  or  railroad  train  within  the  State  of  Maryland, 


1  Code,  art.  27,  sec.  278. 
"lb.,  sec.  279. 
31b.,  sec.  280. 


TIIK    TRIAL    AM)    ITS    INf'IDKNTS.  87 

lUiiy  be  presented,  indicted,  tried  or  convicted  in  any  county 
or  city  from,  to  or  tlirongli  wliicli  the  said  boat  or  train  may 
run,  and,  on  arrest,  be  taken  before,  and,  in  case  of  bail- 
able offenses,  be  held  to  bail  by  any  justice  of  the  peace  in 
any  such  county  or  city;  but  such  presentment,  indi<-tment 
and  trial  shall  be  in  the  same  county  andcity  in  which  such 
justice  of  the  peace  shall  l)e.* 

Criminal  jurisdiction  in  the  counties  is  vested  in  the  Cir- 
cuit Courts-  and  in  Baltimore  City  in  the  Criminal  Court  of 
Baltimore.' 

Where  a  person  steals  ^oods  in  another  state  and  brings 
them  into  this,  while  he  cannot  be  indicted  and  punished 
here  for  the  crime  committed  in  the  former  state,  yet,  as 
every  asportation  is  a  new^  larceny,  he  may  be  indicted  and 
punished  in  this  State  upon  proof  that  the  goods  were 
brought  within  the  jurisdiction.*  The  fields  of  oi)erations 
of  conspiracies  sometimes  embrace  various  states,  as  the 
necessities  of  the  conspirators  require;  yet  the  state  in 
which  all  or  any  of  them  reside,  and  in  which  the  conspiracy 
originated  or  was  conducted,  has  ami)le  jurisdiction  to  try 
and  punish  the  otfense;  otherwise  it  Avould  be  committed 
W'ith  impunity.^ 

§  92. — Proceedings  between  Indictment  and  Trial. — 
AVhen  the  indictment  has  been  tiled,  the  prisoner,  if  not 
already  in  custody,  is  arrested  and  bailed,  or  committed  for 
trial,  and,  if  the  charge  be  felony,  he  is  arrait/ned.  The 
form  of  procedure  is  as  follows  : 

The  prisoner  having  been  placed  at  the  bar — 

Clerk.  A.  B. ,  hold  up  your  right  hand.  You  stand  indicted  by 
the  grand  inquest  of  the  State  of  Maryland,  for  the  body  of 
County,  in  manner  following:  (readiiiy  Hie  indictment).  What  say 
you,  are  you  guilty  of  the  matter  whereof  you  stand  indicted  or  not 
guilty?  The  prisoner  then  says  either  ''guilty"'  or  *'uot  guilty."' 
If  the  latter,  the  clerk  then  asks, — 


•  Code.  art.  27,  sec.  281. 

-Const.,  art.  4,  sec.  20;  Code,  art.  2C.  sec.  36:  Biscoe  i\  State,  68 
M.J.  294. 

'  Const.,  art.  4,  sec.  30;  Code  P.  L.  L..  art.  4.  sec  181. 
••  Worthington  /•.  State.  58  Md.  40:i. 

*  Bloomer  v.  State,  48  Md.  521,  535. 


88  CRIMINAL    LAW. 

"How  will  you  be  tried?"  The  common  answer  is  either  •'by  the 
country"  (or  "jury"),  or  "by  the  court. "^ 

The  purpose  of  the  arraignment  is  to  identify  the  prisoner, 
inform  him  of  the  charge  and  obtain  his  plea  to  the  indict- 
ment. If  the  prisoner  lias  been  arraigned  and  has  pleaded 
to  the  indictment  before  the  venue  is  changed,  there  is  no 
need  of  a  repetition  of  the  form  in  the  court  to  which  the 
record  is  removed.-  Holding  up  the  right  hand,  as  the 
prisoner  is  commonly  directed  to  do  when  arraigned,  is  not 
essential.'  Without  pleading  there  can  be  no  valid  trial; 
and,  if  the  prisoner,  upon  arraignment,  refuses  to  plead, 
the  court  directs  a  plea  of  "not  guilty"  to  be  entered.  In 
cases  of  misdemeanor,  the  plea  of  not  guilty,  or  non  cul ,  is 
entered  by  the  clerk  as  a  matter  of  course.  If  the  defend- 
ant pleads  "guilty,"  the  court  may  proceed  at  once  to 
sentence  him;  but  such  plea  is  received  with  great  caution, 
and,  if  there  be  any  room  for  doubt  as  to  the  party's  com- 
prehension of  its  import,  or,  perhai)s,  in  any  case  where  the 
offense  is  a  grave  one,  the  safe  and  proper  procedure  is  for 
the  court  to  direct  the  plea  of  not  guilty  to  be  entered. 

If  the  indictment  is  defective,  and  the  defendant  desires 
to  avail  himself  of  the  defect,  he  should  demur.  If  the  de- 
fendant does  not  choose  to  demur,  but  goes  to  trial  on  the 
plea  of  not  guilty,  and  he  is  found  guilty,  judgment  may  be 
pronounced  by  the  court,  notwithstanding  the  indictment 
is  defective,  and,  if  he  demurs  and  the  demurrer  is  sustained 
and  the  indictment  quashed,  he  may  be  indicted  again.* 
Even  after  plea  of  not  guilty  the  defendant  may  demur,  the 
right  to  withdraw  the  plea  for  this  purpose  being  absolute.'^ 
The  effect  of  a  demurrer  is  to  admit  the  facts  as  stated  in 
the  indictment  and  the  question  then  arises,  whether  such 
a  state  of  facts  constitutes  an  offense  under  our  laws.*^  A 
demurrer,  at  any  stage  of  the  pleadings,  opens  for  review 
all  the  previous  pleadings,  and,  notwithstanding  the  de- 


'  2  Ev.  Harr.  286. 

2 1  Bishop  Cr.  Proc  ?  74;  Price  v.  State,  8  G.  295,  305;  Davis  v.  State. 
39  M(l.  354,  384. 
M  Bishop  Cr.  Proc.  'i  732. 
■*  Cochrane  v.  State,  6  Md.  400;  State  v.  Hodges,  55  lb.  127. 

*  Cochrane  v.  State,  supra. 

*  State  V.  Fearson,  2  Md.  310. 


TIIK    TRIAL    AND    ITS    INTIDENTS.  HI) 

fectiveiiess  of  the  i)lea(liii|;-  (Iciimncd  to,  the  court  gives 
judgment  against  the  party  who  committed  the  tirst  error 
in  pleading/ 

The  usual  plea  in  criminal  cases  is  the  general  issue  jilea 
of  not  guilty  above  referred  to.  The  ettect  of  this  plea  is 
to  deny  the  whole  charge,  and  the  defendant  may  under  it 
give  his  special  defense  in  evidence,  though  the  matter  of 
fact  be  proved  against  him.^  The  defendant  may  also  file 
special  pleas  in  bar,  such  as  the  plea  of  limitations,  autre- 
fois acquit,  autrefoit  conrict  or  autrefoit  attaint,  or  he  may 
plead  to  the  jurisdiction  of  the  court,'  or  in  abatement/ 
When  it  is  deemed  exi)edient  by  counsel  to  file  a  number 
of  special  pleas,  the  respective  pleadings  should  be  con- 
tained on  the  same  paper  and  filed  at  one  time,  and,  if 
amendments  are  found  to  be  necessary,  the  pleadings  which 
require  amendment  should  be  prepared  anew  and  filed  and 
the  original  pleadings  withdrawn  from  the  case/  When 
the  case  is  at  issue,  the  next  step  in  the  i)roceedings  is  the 
trial,  unless  there  should  be  a  change  of  venue,  or  removal 
of  the  proceedings. 

§  9o. — Change  of  Venue. — The  parties  to  any  cause 
may  submit  the  same  to  the  court  for  determination,  with- 
out the  aid  of  a  jury;  and,  in  all  suits  or  actions  at  law, 
issues  from  the  ori)hans'  court  or  from  any  court  sitting  in 
equity,  and  in  all  cases  of  presentment  or  indictments  lor 
ofieuses  which  are  or  may  be  punishable  by  death,  pending 
in  any  of  the  courts  of  law  of  this  State  having  jurisdiction 
thereof,  upon  suggestion  in  writing  under  oath  of  either  of 
the  parties  to  said  procee<lings,  that  such  i)arty  can  not 
have  a  fair  and  im[)artial  trial  in  the  court  in  whicl:  the 
same  may  be  pending,  the  said  court  shall  order  and  direct 
the  record  of  i)roceedings  in  such  suit  or  action,  issue, 
presentment  or  indictment  to  be  transmitted  to  some  other 
court  having  jurisdiction  in  such  case  for  trial  :  but,  in  all 
other  cases  of  presentment  or  indictment,  pending  in  any 
oftlie  courts  of  law  in  this  State  having  jurisdiction  thereof, 


'  Spielman  v-  State,  27  Md.  520. 

*  1  Bishop  Cr.  Proo.  <!  743. 

=>  Norwood  V.  State,  4o  Md.  68;  Neff  r.  State,  57  lb.  385. 

••Scarborough  v.  State,  55  Md.  345;  Johns  ;.'.  State.  lb.  350. 

^Norwood  c.  State,  siijini. 


00  CRIMINAL    LAM^ 

iu  addition  to  the  suggestion  in  writing  of  either  of  the 
parties  to  such  presentment  or  indictment,  that  such  party 
can  not  have  a  fair  and  imjKirtial  trial  in  the  court  in  which 
the  same  may  be  pending,  it  shall  be  necessary  for  the 
party  making  such  suggestion  to  make  it  satisfactorily  - 
appear  to  the  court  that  such  suggestion  is  true,  or  that 
there  is  reasonable  ground  for  the  same  ;  and  thereupon 
the  said  court  shall  order  and  direct  the  record  of  proceed- 
ings in  such  presentment  or  indictment  to  be  transmitted 
to  some  other  court  having  jurisdiction  in  such  cases  for 
trial ;  and  such  right  of  removal  shall  exist,  upon  sugges- 
tion, in  cases  when  all  the  judges  of  said  court  may  be  dis- 
qualified, under  the  provisions  of  this  Constitution,  to  sit 
in  any  case,  and  said  court  to  which  the  record  of  proceed- 
ings in  such  suit  or  action,  issue,  presentment  or  indictment 
may  be  so  transmitted  shall,  hear  and  determine  the  same 
in  like  manner  as  if  such  suit  or  action,  issue,  presentment 
or  indictment  had  been  originally  instituted  therein;  and 
the  General  Assembly  shall  make  such  modification  of 
existing  law  as  may  be  necessary  to  regulate  and  give  force 
to  this  provision. ' 

When  any  suit  or  action,  issues  or  petitions, presentment 
or  indictment  for  offenses  which  are  or  may  be  punishable 
by  death  shall  be  removed,  according  to  the  provisions  of 
the  preceding  section,  it  shall  and  may  be  lawful  for  the 
party  at  whose  instance  the  said  suit  or  action,  issues  or 
l^etition,  presentment  or  indictment  was  not  removed,  if  he 
shall  think  that  justice  can  not  be  done  him  in  said  court  to 
which  said  suit  or  action,  issues  or  petition,  presentment  or 
indictment  has  been  removed,  to  file  an  affidavit,  as  pre- 
scribed by  the  i)receding  section,  in  said  court  to  which  said 
removal  is  ordered,  suggesting  that  he  cannot  have  justice 
in  such  court,  whereupon  the  said  court  shall  remove  the 
said  cause,  suit  or  action,  issues  or  petition,  presentment 
or  indictment  to  such  other  court  having  jurisdiction  in 
such  cases  as  the  said  court  shall  think  will  best  tend  to 
justice  between  the  parties  to  said  suit  or  action,  issues  or 
petition,  presentment  or  indictment.     When  any  present- 


'  Const.,  art.  4.  tec.  8;  Code,  art.  75,  sec.  97:  Biscoe  r.  State,  68 
Md.  294;  McMillan  v.  State,  lb.  307. 


THE    TRIAL    AND    ITS    INT  I  DENTS.  i>l 

ment  or  indictnieiit  ibr  otlenscs  wliicli  are  not  or  may  not 
be  punishable  by  <leatli  sliall  V)e  ordered  to  be  removed 
under  the  provisions  of  the  preceding  section,  no  removal 
shall  be  ordered  by  the  court  to  which  the  same  shall  have 
been  removed,  upon  the  application  of  the  ])arty  at  whose 
instance  such  presentment  or  indictment  was  not  removed, 
unless,  in  the  exercise  of  its  discretion,  the  said  court  shall 
be  satisfied  by  proof  that  such  removal  is  necessary  for  the 
purpose  of  a  fair  and  imi)artial  trial. ^ 

It  shall  be  in  the  power  and  discretion  of  the  court, 
should  they  think  it  proper,  to  cause  a  special  panel  of 
forty-eight  Jurors  to  be  selected  by  the  sheriti"  from  the 
community  at  large  to  try  any  cause  or  causes  removed 
under  the  two  preceding  sections;  and  the  court  shall  direct 
the  clerk  thereof  to  divide,  by  ballot,  said  number  of  jurors 
into  two  panels  of  petit  jurors,  and  may  take  such  order 
for  the  regulating  the  attendance  of  said  panels  as  the 
said  court  shall  see  lit ;  and  the  said  court  may  direct  tales- 
men to  be  summoned  in  said  cause  or  causes,  whenever 
necessary.^ 

In  all  criminal  cases  removed  as  aforesaid,  where  the 
party  to  be  tried  therein  is  detained  in  jail,  the  party  so 
detained  shall  not  be  removed  until  the  first  day  of  the 
session  of  the  court  to  which  said  case  shall  be  removed.^ 

Any  of  tbe  said  circuit  courts  to  which  any  cause  or 
causes  may  be  removed  under  the  preceding  sections  shall 
allow  such  coinpeusatiou,  not  exceeding  the  sum  of  forty 
dollars  in  any  one  case,  to  the  State's  attorney,  for  his 
services  in  appearing  to  or  trying  said  cause  or  causes,  as 
they  may  deem  just  and  proper,  to  be  borne  and  paid  by 
the  county  from  which  said  cause  or  causes  may  be  removed, 
or  by  the  City  of  Baltimore,  as  the  case  may  be.^ 

If  it  shall  appear  to  any  court  to  which  any  civil  or  criminal 
case  has  been  removed,  that  the  transcript  of  the  record  in 
said  case  is  not  a  true  transcript  of  the  record  or  proceed- 
ings had  in  the  court  from  which  the  said  case  has  been 


'  Code,  art.  75,  sec.  98. 
-lb.,  sec.  99. 
^Ib.,  sec.  100. 
'lb.,  sec.  101. 


92  CRIMINAL    LAW. 

removed,  it  shall  be  the  duty  of  the  court  to  which  the  case 
has  been  removed  forthwith  to  order  and  direct  that  the 
said  imperfect  transcript  shall  be  delivered  to  the  clerk  of 
the  court  from  which  the  same  was  sent ;  and  it  shall  be 
the  duty  of  said  clerk  receiving  such  transcript  so  to  him 
returned  to  correct  the  same  forthwith,  noting  at  the  end 
thereof  the  corrections  so  made,  or  to  prepare  a  new  tran- 
script of  the  said  record,  which  shall  be  correct  in  all  its 
parts/ 

The  court  to  which  any  imperfect  transcript  is  sent  shall 
have  power  to  order  the  delivery  thereof  to  the  clerk  of  the 
court  from  which  the  case  was  removed  as  often  as  may  be 
necessary  to  the  perfection  of  said  transcript  as  a  true  copy 
of  the  record  in  the  case;  and  the  court  to  which  such  case 
is  removed  shall  proceed  with  the  trial  thereof  at  as  early 
a  day  as  may  be;  and  all  recognizances  and  other  proceed- 
ings had  in  the  court  to  which  the  case  is  removed  shall 
be  as  good  and  valid  as  if  the  transcript  of  the  record  orig- 
inally transmitted  had  been  correct  in  all  its  parts. - 

Until  the  record  in  any  cause  has  been  actually  trans- 
ferred from  the  court  passing  the  order  of  removal  to  the 
court  to  which  it  is  removed,  the  court  passing  the  order 
shall  have  i)Ower  to  strike  out  the  order  of  removal  on 
motion  of  the  party  applying  for  the  same,  and,  when  so 
stricken  out,  the  cause  shall  proceed  as  if  no  motion  for 
removal  had  been  made,  but  the  motion  for  removal  shall 
not  be  renewed  by  the  same  party  after  the  expiration 
of  the  term  at  which  the  order  for  removal  was  stricken 
out,  provided  that  no  such  motion  to  strike  out  an  order 
for  removal  shall  be  entertained,  unless  the  same  shall  be 
made  in  time  to  admit  of  the  trial  of  the  cause  at  the  same 
term  of  the  court  at  which  said  order  for  removal  was 
passed.^ 

The  right  of  removal  of  a  cause,  under  prescribed  con- 
ditions, is  a  constitutional  right,  which  can  not  be  denied 
by  the  courts  nor  abridged  by  legislation,  but  the  Legis- 


'  Code,  art.  75,  sec  102. 
-lb.,  sec.  103. 
'lb.,  sec.  107. 


I'ln:    TRIAL    AxND    ITS    INCIDENTS.  !).{ 

lature  may  enlarge  it.'  Tlie  right,  however,  does  not  tall 
within  the  class  of  vested  rights;  it  is  hut  a  remedy  given 
to  secure  an  impartial  trial,  wlierefore,  if  the  Constitution 
be  amended  iu  this  regard  after  in<li('tment,  but  l>efore 
application  for  renewal,  the  ai)pIication  is  governed  l)y  the 
liiw  as  existing  at  the  time  when  it  is  made.'  8nl»ject  to 
this  (lualilication,  the  constitutional  privilege  has,  in  every 
respect,  been  construed  liberally.'  When  there  has  been 
no  rfecUml  trial  of  a  cause,  a  jury  having  been  sworn  and 
discharged,  because  of  their  inability  to  agree,  the  cause 
is  still  pending  for  trial,  as  much  so,  to  all  intents  and 
purposes,  as  if  a  jury  had  never  been  sworn,  and  the  right 
of  removal  obtains;*  but  ordinarily,  when  a  trial  has  com- 
menced, the  jury  having  been  sworn,  the  application  lor 
removal  can  not  be  entertained.^ 

Upon  the  receipt  of  the  transcript  of  the  record  of  the 
removed  cause,  the  court  to  which  the  same  is  transmitted 
at  once  aciiuires  jurisdiction,  not  only  of  the  cause  itself, 
but  of  the  parties  accused;  and  the  fact  that  they  are  still 
detained  iu  prison  in  the  county  from  which  the  record 
was  sent  in  no  manner  atlects  the  jurisdiction  thus  ac- 
<iuired.*  The  sheriff  of  the  county  to  which  the  case  is 
removed  is  the  proper  person  to  take  charge  of  the  removal 
of  the  prisoner." 

^  <)-i. — Mode  of  Trial. — Traverse  before  Court.— Any 
person  presented  or  indicted  jnay,  instead  of  traversing 
the  same  before  a  jury,  traverse  the  same  before  the  court, 
which  shall  thereupon  try  the  law  and  the  facts.*  The 
effect  of  this  is,  to  allow  a  party  the  privilege  o'f  electing 


'Griffin  v.  Leslie,  20  Md.  15;  Smith  r.  State,  44  lb.  530:  Hoyer  v. 
Colton.  43  lb.  421. 

-Smith  y.  State,  sttjira;  Dulauy  v.  State,  45  Md.  99. 

'•State  V.  Dashiell.  6  U.  &  J.  268;  Price  v.  State,  8  G.  295;  Jerry  v. 
Towusbeud  2  Md.  274;  Griffin  v.  Leslie,  sujn-a:  Price  r.  Nesbitt.  29 
lb.  263;  Gardner  v.  Stale,  25  lb.  146. 

••Deford  v.  State,  30  Md.  179,  196. 

■■"Price  r.  State,  supnc  Deford  r.  State,  supra;  Smith  r.  State, 
sitpi-a;  McMillan  r.  State,  6S  Md.  307. 

"Schultze  r.  State,  43  Md.  295. 

■Mayor  r.  County  Commissioners.  61  Md.  326. 

"Code.  art.  27.  sec.  282. 


94  CRIMINAL    LAW. 

to  be  tried  by  tbe  court  instead  of  a  jury,  and,  wben  siicb 
election  is  made,  tbe  court  is  substituted  lor  tbe  jury,  and 
has  tbe  same  duties  and  functions  to  perform  in  passing" 
upon  tbe  guilt  or  innocence  of  tbe  accused.^ 

§  95. — Same  Subject — Traverse  before  Jury. — In  all 
civil  cases  called  for  trial  in  any  court  in  wbicb  a  jurv 
sball  be  necessary,  according'  to  tbe  Constitution  and  laws 
of  tbis  State,  twenty  persons  from  tbe  panel  of  petit  jurors 
sball  be  drawn  bv  ballot  bv  tbe  clerk,  under  tbe  direction 
of  tbe  court,  and  tbe  names  of  the  twenty  persons  shall 
be  written  upon  two  lists,  and  one  of  said  lists  forthwith 
delivered  to  tbe  respective  parties,  or  their  counsel  in  the 
cause;  and  tbe  said  parties,  or  their  counsel,  may  each 
strike  out  four  persons  from  tbe  said  lists,  and  tbe  remain- 
ing twelve  i)ersons  sball  thereui)on  be  immediately  em- 
panelled and  sworn  as  the  petit  jury  in  such  cause." 

If  tbe  said  i)arties,  or  their  counsel,  or  either  of  them 
shall  neglect  or  refuse  to  strike  out  from  tbe  said  lists  the 
number  of  persons  directed  in  the  preceding  section,  tbe 
court  may  direct  the  clerk  to  strike  out  from  tbe  list  of 
the  party  so  neglecting  or  refusing  the  number  in  said 
section  directed,  and  tbe  remaining  twelve  persons  shall 
bie  empanelled  and  sworn  as  aforesaid;  but  this  and  the 
preceding  section  shall  not  take  away  the  right  of  any  per- 
son to  challenge  tbe  array  or  polls  of  any  i)ancl  returned, 
in  tbe  manner  allowed  by  tbe  laws  of  tbis  State. ^ 

Tbe  several  courts  of  this  State  sball,  at  all  times,  have 
power  to  direct  talesmen  to  be  summoned  to  serve  on 
juries,  where,  without  such  talesmen,  there  would  not  be 
twenty  of  tbe  original  panel,  exclusive  of  the  jurj' charged, 
from  whom  a  jury  can  be  formed,  or  may  direct  such  tales 
to  be  summoned  whenever,  by  challenging  or  otherwise, 
a  sr.fticient  number  of  jurors  cannot  be  bad  to  try  the  case, 
either  civil  or  criminal.^ 

If  the  parties,  or  their  counsel,  agree,  the  drawing  of  a 
panel  of  twenty  jurors  in  any  cause  may  be  dispensed  witb.' 

'  League  v.  State,  36  Md.  257. 
^Code,  art.  51.  sec.  13. 
='lb.,  sec.  14. 
■*Ib.,  sec.  15. 
*Ib.,  sec.  16. 


THE    TUIAL    AND    ITS    INCIDENTS.  'J."> 

The  provisions  of  the  lour  preceding'  sections  shall  apply 
to  all  eiimiiial  cases  where  the  ii<;ht  of  ix'remptory  clml- 
leuge  is  not  allowed,  and  the  State's  attorney  for  the 
county  or  city,  or  the  attorney  prosecuting"  for  the  State, 
shall  strike  for  the  State/ 

Any  alien,  denizen  or  foreigner  who  may  be  indicte<l  for 
any  ottense  committed  within  this  State  shall  be  tried  by  a 
jurv  of  the  county  in  the  same  manner  as  the  citizens 
thereof,  and  there  shall  be  no  challenge  either  to  the  array 
or  the  polls  for  the  want  of  foreigners  ou  the  panel  or  jury 
that  may  be  returned. - 

The  right  of  i)eremptory  challenge  shall  be  allowed  to  any 
person  who  shall  be  tried  on  presentment  or  indictment 
for  an\'  crime  or  misdemeanor  the  i)unishmeut  whereof, 
by  law,  is  death  or  confinement  in  the  Penitentiary,  and 
to  the  State,  on  trial  of  such  indictment  or  ])resentment; 
but  the  accused  shall  not  challenge  more  than  twenty  nor 
the  State  more  than  four  jurors,  without  assigning  cause.* 
In  Baltimore  City,  in  all  criminal  cases  in  which  the  person 
indicted  has  or  may  have  the  right  of  peremptory  challenge, 
the  State's  attorney  shall  have  the  right  to  challenge 
peremptorily  anj*  number  of  jurors  not  exceeding  tive/ 

No  indictor  shall  be  put  in  iinjuests  upon  deliverance  of 
the  indictees  of  felonies  or  tresi)ass,  if  he  be  challenged  for 
that  same  cause  by  him  which  is  so  indicted.^ 

To  enable  a  party  to  a  cause  to  secure  the  full  enjoyment 
of  the  privilege  of  striking  from  a  list  of  twenty  jurors  four 
of  the  jurors  against  whom  no  cause  of  challenge  could  be 
established,  as  contem[)lated  by  sections  lo  and  14  of 
article  51  of  the  Code  of  Public  General  Laws,  above 
(juoted,  the  panel,  before  it  is  stricken  from,  should  [ireseut 
twenty  names  beyond  the  reach  of  challenge,  either  as  a 
l^rincipal  cause  or  to  the  favor,  and  the  parties  have  the 
right  to  have  their  causes  of  challenge  heard  and  deter- 
mined upon  before  the  panel  is  drawn." 


"  Code,  art.  ;")!,  sec.  17. 

■^Ib.,  sec.  1^. 

^Ib.,  sec.  It). 

*  Code  P.  L.  L.,  art.  4,  sec.  60e. 

■'25  E.  3.  Stat.  ">,  ch.  3;   Alexander  Br.  Stat.  171 

«  Lee  /•.  Peter,  6  G.  &  J.  447. 


96  0RI3IINAL    LAAV. 

Where  several  parties  are  jointly  indicted  and  tried,  the 
right  to  challenge  the  array  or  polls  for  favor  or  cause  is 
one  that  each  defendant  is  entitled  to  exercise  for  himself, 
independently  of  his  co-defendants;  but,  in  relation  to  the 
right  of  striking  four  persons  from  the  list  of  twenty,  all 
the  defendants  are  considered  bnt  as  one  parti/,  and  can 
not  claim  the  right  to  strike  more  than  four  juiors  collec- 
tively/ Bnt  in  cases  where  the  ])unishment  is  death  or 
confinement  in  the  Penitentiary,  the  right  of  peremptory 
challenge  is  given  to  the  accused  by  section  19  of  the  same 
article  in  ditierent  language,  and  such  right  of  challenge 
■where  there  are  several  del'endauts  may  fairly  be  held  to 
be  sei)arate.- 

Either  party  to  a  cause  may  challenge  a  juror  for  cause, 
whether  he  has  or  lias  not  exercised  his  statutory  right  of 
peremptory  challenge.^ 

The  statutes  relating  to  peremptory  challenges  do  not 
prescribe  the  order  in  which  challenges  shall  l)e  made,  or 
direct  whether  the  State  or  the  prisoner  shall  first  exercise 
the  right.  It  would  seem.  Therefore,  that  the  ])roceeding 
in  this  respect  is  lett  to  the  discretion  of  the  Circuit  Courts. 
Jt  appears  that  the  i)ractice  in  the  circuits  has  not  been 
uniform.  While  in  several  of  them  the  practice  has  been 
to  require  the  State  to  challenge  first,  in  the  City  of  Balti- 
more and  in  the  first  and  fourth  circuits  a  different  rule 
has  prevailed.* 

It  has  been  the  uniform  practice  of  the  courts  of  this 
State  to  proceed  to  make  uj)  and  swear  the  panel  from 
vsuch  jurors  or  talesmen  as  have  been  found  attending  the 
court,  without  waiting  for  or  directing  process  against 
others  who  may  have  failed  to  attend,  and  whose  names 
may  have  been  first  drawn,  or  who  may  have  been  first 
summoned.  The  accused  has  no  special  right  to  have  any 
particular  individual  or  individuals  presented  to  be  sworn 
as  jurors  rather  than  others  Cipially  competent.  All  that 
he  has  a  right  to  demand  is,  that  the  persons  presented  to 


'  Hamlin  v.  State,  67  Md.  B33. 

-State  r.  Reed,  47  N.  H.  466;  1  Bishop  Cr.  Proc  'i  1028. 

3  Edelen  v.  Gough,  8  G.  87. 

■"Turpin  v.  State,  55  Md.  463. 


THE   TRIAL   AND    ITS    INCIDENTS.  07 

"be  sworn  as  Ins  triers  shall  be  fjood  and  lawful  men,  com- 
petent, nnder  estahlislie<l  rules  of  law,  to  be  swoni  in  his 
case.  The  mere  order  of  their  beiny;  drawn  or  summoned 
<'annot,  in  any  way,  artect  their  competency,  nor  does  it 
operate  to  deprive  the  accused  of  any  rij^lit  that  he  may 
have  in  the  or<;ani/,ation  of  the  jury.  Therefore,  it  is  no 
valid  ground  of  objection  by  the  traverser,  that  the  persons 
drawn  or  summoned  as  jurors  or  talesmen  were  not  called 
to  the  book  in  the  order  in  wliich  their  names  appeared  in 
the  list,  or  the  order  in  which  they  may  have  been  drawn 
or  summoned.^ 

The  usual  and  natural  method  of  showing  cause  for 
challenge  is  to  require  the  juror  to  declare  the  matter, 
under  oath,  on  the  rolr  dire^  The  mere  formation  and 
expression  of  an  opinion  is  not  of  itself  a  sufficient  ground 
to  exclude  one  from  serving  as  a  juror.  The  opinion  which 
should  exclude  a  juror  must  be  a  fixed  and  deliberate  one, 
j)artaking  of  the  nature  of  a  i)rejudgment.^  If  a  juror, 
after  having  been  sworn,  the  full  panel  not  being  made  up 
and  the  deleudant  given  in  their  charge,  informs  the  court 
that  he  has  formed  an  opinion  with  regard  to  the  guilt  or 
innocence  of  the  accused,  it  becomes  the  duty  of  the  court 
to  examine  him  upon  oath,  in  order  to  ascertain  whether 
the  oi)inion  so  formed  is  such  as  to  disqualify  him  from 
acting  as  a  juror,  and  to  discharge  him  I'rom  the  panel,  if  it 
should  appear  that  he  is  not  qualitied.' 

§  9(5. — Oath  of  Jurors, — In  cases  of  mi.sdemeanor  the 
iollowing  oath  is  administered: — •' 

You   shall   well    and    truly  try  the    issue    of  this 
traver.se  between  tlie  State  of  ^laryland  and  A.  B., 
and  a  true  verdict  give  according  to  your  evidence. 
So  help  you  God. 
In  cases  of  felony  the  jurors  are  sworu  as  follows: — ^ 


'Johns  ('.  State,  oo  Md.  350. 
-  1  Bishop  Cr.  Proc  ii  934. 

^  Waters  c.  State,  51   Md.  430:  Zimmermau   v.  State,  5G  lb.  536; 
Johns  V.  State,  supra. 

^Zinunerinan  v.  State,  supra. 

••2  Ev.  Hair.  283. 

"lb. 


98  CRIMINAL    LAW. 

Yon  shall  well  and  tinly  try,  an«l  a  trne  deliverance 
make  between  the  State  of  Maryland  and  A,  B.,  the 
I)risoner  at  the  bar,  whom  yon  shall  have  in  charge, 
and  a  trne  verdict  give  according*  to  yonr  evidence. 
So  help  yon  God. 

§  97, — Other  Matters  in  Relation  to  Jury. — Alter  a 
prisoner  has  pleaded  generally  to  an  indictment  having 
several  connts,  the  jury  may  be  sworji  and  charged  upon 
one  of  the  counts  only,  to  the  exclusion  of  the  others.^ 

The  authority  of  the  court  to  discharge  the  jury  after 
being  impanelled  and  charged  with  the  prisoner  rests  on 
the  sound  discretion  of  the  court.  It  can  rest  nowhere  else. 
It  is  merely  an  incidental  matter  arising  in  the  progress  of 
the  trial  in  no  way  connected  with  the  question  before  the 
jury  of  guilty  or  not  guilt.y.  It  is  an  incidental  matter 
depending  upon  circumstances  appearing"  to  the  satis- 
faction of  the  court,  as  requiring  it,  in  the  proper  adminis- 
tration of  justice,  to  discharge  the  jury.^ 

A  mistake  in  the  name  of  a  juror,  in  the  selection  of  the 
panel,  is  no  ground  to  arrest  the  judgment,  where  it 
appears  that  there  was  no  mistake  as  to  the  identity  of  the 
person  sworn  as  a  juror.^ 

§  98.— The  Trial.— When  Said  to  Commence.— The 
actual  trial  of  a  cause,  at  least  in  contemplation  of  the 
laws  regulating  removals  and  bills  of  exceptions,  is  said  to 
commence  when  the  panel  of  twelve  jurors  has  been  com- 
pleted, by  being  duly  sworn.' 

§  99. — Prayers  and  Instructions. — It  is  not  error  for 
the  court,  after  the  jury  have  retired  to  deliberate,  to 
send  a  written  response  to  the  jury  room,  giving  the 
opinion  of  the  court  upon  a  question  submitted  by  the 
jury.-'  jSTo  court,  however,  can  be  required  by  either  the 
counsel  or  jury  to  give  instructions  upon  the  law  or  the 


'  Bulk  r.  State,  2  H.  &  J.  426. 
2  HoflFman  v.  State,  20  Md.  425. 
'Munshower  r.  State,  56  Md.  514. 

"Price  V.  State,  8  G.  295,  .313;  Smith  v.  State,  44  Md.  530:  Dulanjr 
V.  State,  45  lb.  99:  Pickett  r.  State,  58  lb.  XIII. 
^  Wheeler  i:  State,  42  Md.  568. 


THE    TKTAL   AND   ITS    INCIDENTS.  00 

legal  effect  of  the  evidence;  but  it  may,  in  its  discretion, 
aUvtHe  the  .jury  in  this  regard,' 

§  1(M>. — Argument  before  the  Jury. — Whatever  power 
the  Constitution  may  have  conferred  niton  juries  in  criminal 
cases,  it  has  conferred  none  upon  counsel.  They  are  still 
oHIcers  of  the  (;ourt  and  under  its  ])roper  control;  th<*y  have 
no  right  and  should  not  be  ])erniitted  to  argue  against  the 
oi)inion  of  the  court  on  a  question  of  law  upon  which  the 
court  has  a  right  to  express  itself,  in  order  to  induce  the 
jury  to  disregard  it." 


1 


Broil  v.  State.  45  Md.  3")C;  Bloomer  v.  State.  48  lb.  521,  5^9;  For- 
wood  r.  State,  49  lb.  531;  Balto.  &  Yorktowu  Turnpike  r.  !iti.te.  63 
lb.  573;  ante.  \  32. 

«  Belt  V.  State,  57  xMd.  lOS:  Franklin  v.  State.  12  lb.  23<J;  Baker  v. 
State.  2  H.  &  J.  5. 


CHAPTEIJ  IX. 

The  Evidencje. 

§  101. — Competency  of  Witnesses. — In  the  trial  of  all 
iDdictments,  (•oini)laiiits  or  other  i)roceertino\s  agaiust 
per.sons  charged  with  the  comiuission  of  crimes  and  offenses, 
and  in  all  proceedings  in  the  nature  of  criminal  proceed- 
ings, in  any  court  of  this  State  and  before  a, justice  of  the 
peace  or  other  otticer  acting  judicially,  the  person  so 
charged  shall,  at  his  own  request,  but  not  otherwi-se,  be 
deemed  a  comi)etent  witness;  but  the  neglect  or  refusal  of 
any  such  person  to  testify  shall  not  create  any  i)resumption 
against  him.  In  all  criminal  i)i()ceedings  the  husband  or 
wife  of  the  accused  party  shall  be  competent  to  testify;  but, 
in  no  case,  civil  or  criminal,  shall  any  husband  or  wife  be 
competent  to  disclose  any  confidential  communication  made 
by  the  one  to  the  other  during  the  marriage;  and  in  suits, 
actions,  bills  or  other  proceedings  instituted  in  consequence 
of  adultery,  or  for  the  ])urpose  of  obtaining  a  divorce,  or 
for  damages  for  breach  of  promise  of  marriage,  no  verdict 
shall  be  permitted  to  be  recovered,  nor  shall  any  judgment 
or  decree  be  entered  upon  the  testimony  of  the  plaintiff 
alone,  but,  in  all  such  cases,  testimony  in  corroboration  of 
that  of  the  plaintiff  shall  be  necessary.' 

When  the  accused  elects  to  become  a  witness  on  his  own 
behalf,  his  testimony  is  open  to  observation  by  the  attorney 
for  the  State  and  by  the  jury.  His  conduct  on  the  witness 
stand,  for  example,  his  silence,  when  testifying,  as  to  mat- 
ters involved  in  the  pending  inquiry  whicli  are  clearly 
within  his  knowledge,  are  circumstances  that  the  jury  has 
a  right  to  consider  in  deciding  upon  the  credit  due  to  the 
witness,  in  connection  with  the  other  facts  luoven  in  the 
case,  and   they  are,  therefore,  necessarily  circumstances 

'  Code,  art.  35,  sec.  3. 

Under  a  former  statute  the  wife  of  the  accused  was  held  to  be  in- 
competent as  a  witness.     Turpiu  r.  State,  55  Md.  462. 


TIIK    EVIDENTK.  101 

upon  wliicli  the  State's  attorney  lias  a  right  to  comment  in 
addressinjj-  the  jury.  It  is  at  the  option  of  the  accused  to 
beconn'  a  witness.  Having  elected  to  do  so,  he  is  made 
competent  for  all  purposes  in  the  case.  It,  by  his  testi- 
mony, he  can  explain  and  rebut  a  fact  tending  to  show  his 
guilt,  if  innocent,  and  he  fails  to  do  so,  the  same  presumi)- 
tion  arises  from  his  failure  that  would  arise  from  a  failure 
to  give  the  explanation  b^"  another  witness,  if  in  his  power 
to  give  it.  The  reason  for  the  presumption  is  alike  iu  botli 
cases.  It  ai'ises  from  the  known  desire  of  parties  to  repel 
or  explain  accusatory  evident^e  against  them,  if  iu  theii 
power,  and  the  l»asis  of  the  presumption  is,  that  the  case 
shows  that  it  is  in  their  power,  if  innocent.  Hence,  a 
failure  tends  to  show  an  absence  of  inuoceuce.^ 

A  party  accused,  when  examined  as  a  witness,  may  be 
interrogated  as  to  his  own  motives  or  intentions,  when  these 
are  material.-  Thus,  a  person  on  trial  for  an  assault  with 
intent  to  murder  is  competent  to  testify  as  to  the  purpose 
for  which  he  procured  the  instrument  with  which  he  com- 
mitted the  assault.^ 

Accessories  were  formerly  held  incompetent  to  testify;* 
but,  under  the  statute  above  quoted,  this  disability  ceases. 

Children  are  frequently  produced  as  witnesses  in  crimi- 
nal cases,  and  the  ([uestion  of  their  competency  is  an  im- 
portant one.  There  is  no  precise  age  within  which  they 
are  absolutely  excluded,  on  the  presumi)tion  that  they  have 
not  sufficient  understanding.'  If  the  infant  be  of  sufficient 
years  and  discretion  to  know  what  occurs,  to  remember  it, 
and  to  give  an  intelligible  account  of  it,  and,  when  ex- 
amined, comprehends  the  danger  and  impiety  of  lalsehood, 
he  is  a  competent  witness.  The  weight  of  his  testimony  is 
for  the  jury. "^  It  may  be  regarded  as  settled,  that,  wherever 
there  is  intelligence  enough  to  observe  and  to    narrate, 


'  Brasliears  r.  State,  r»8  Mil.  oCo. 

-  Whuilou  Cr.  Ev.,  9  ed.,  i>.  431 . 

='Fenvvick  r.  State,  (Ji  Md.  339. 

••Davis  r.  State,  38  Md.  1"). 

^  I  Greenl.  Ev.  'i  Ml:  R.  i:  Brasier,  2  Leach,  183:  S.  C,  1  East  P. 
C.  443;  S.  C,  Bull.  N.  P.  '293;  Comm.  r.  llutchiusou,  IU  Mass.  22r>: 
McGuire  c.  People.  44  Mich.  286. 

''Kelly  c.  State,  To  Ala.  21. 


102  CRIMINAL    LAW. 

there  a  child,  having  a  due  sense  of  the  obligation  of  an 
oath,  can  be  admitted  to  testify.^  At  the  age  of  fourteen, 
every  person  is  presumed  to  have  common  discretion  and 
understanding:  but,  if  tlie  Avitness  offered  be  below  that 
age,  inquiry  is  made  by  the  judge,  at  his  discretion,  in  order 
to  ascertain  the  capacity  of  the  witness.^  The  questions 
should  be  put  in  a  simple  fashion,  adapted  to  the  ca])acity 
of  a  child. ^  If  the  child,  being  a  principal  witness,  appears 
not  yet  sufticientlj'  instructed  in  the  nature  of  an  oath,  the 
court  may  put'  off  the  trial  that  this  may  be  done.*  The 
sole  reason  for  M'hich  infants  of  tender  years  may  be  ex- 
cluded as  witnesses  is,  that  they  do  not,  at  the  time  when 
their  testimony  is  offered,  comprehend  and  realize  the 
danger  and  impiety  of  falsehood;  and,  hence,  the  fact  that 
an  infant  was  of  too  tender  years  to  be  sworn  at  the  time 
of  the  occurrence  of  the  transaction  about  which  he  is  after- 
wards called  to  testify  does  not  render  him  incompetent, 
but  is  merely  a  circumstance  that  bears  on  the  weight  of 
his  testimony." 

§  102, — Number  of  W^itnesses. — One  witness  is  ordi- 
narily sufticient  for  conviction.  In  cases  of  treason,  by 
levying  war  against  the  State,  or  adhering  to  the  enemies 
thereof,  two  witnesses,  both  of  them  to  the  same  overt  act 
are  necessary,"  and  the  mere  unaided  testimony  of  one  wit- 
ness is  not  sufticient  to  convict  of  perjury.'  These  are  the 
only  offenses  requiring  proof  by  more  than  one  witness. 

§  103. — Accomplices. — An' accomplice  is  detined  to 
be  "one  who  becomes  a  partaker  with  others  in  a  crime, 
Avhether  his  guilt  is  in  the  same  degree  with  theirs  or  not."* 
In  all  cases  in  which  an  accomplice  is  admitted  to  testify 


'  Wharton  Cr.  Ev.  9  ed.,  §  366. 

But  the  dying  declarations  of  a  child  four  years  of  age  have  been 
rejected  (R.  v.  Pike,  3  C.  &  P.  598);  and  Mr.  Wharton  assigns  four 
years  generally  as  a  minimum  'Cr.  Ev.,  9  ed.,  '/.  367.) 

''  1  Greenl.  Ev.  I  367. 

=>  Reg.  V.  Holmes,  2  F.  &  F.  788. 

''  1  Greenl.  Ev.  ^  367;  Comm.  v.  Lynes,  142  Mass.  577. 

^  Kelly  V.  State,  75  Ala.  21. 

"Code,  ait.  27,  sec.  264.     Cf.  2  Bishop  Cr.  Proc,  ?  1037. 

'2  Bishop  Cr.  Proc,  ^^  927-932. 

«1  lb..  ^.  1159. 


THE    EVIDENCE.  103 

on  behalf  of  the  prosecution,  while  tlie  jury  may,  if  they 
deem  tit,  conviot  upon  his  testimony,  yet  it  is  the  practice 
of  botli  llngiish  and  American  conrts,  in  the  exercise  of  a 
sonnil  discretion,  to  advise  the  Jury  not  to  convict  the 
prisoner,  unless  the  testimony  of  such  accomplice  be  con- 
firmed, not  only  as  to  the  circumstances  of  the  crime  which 
he  confesses  to  have  committed,  but  also  as  to  such  circum- 
stances as  he  testifies  to  as  identifying:  the  i)risoner  there- 
with; in  other  words,  the  corroborative  proof  must  come 
from  other  sources,  or  third  parties,  of  acts  done  by  the 
prisoner  connecting  him  with  the  accomi)lice  and  identify- 
ing the  prisoner  with  the  crime  of  the  accomplice.^ 

§  104. — Admissions  and  Confessions. — The  term  ad- 
misfiioii  is  usually  applied  to  civil  transactions  and  to  those 
matters  of  fact  in  criminal  cases  that  do  not  involve  crimi- 
nal intent;  the  term  co^/'t'.s.s/o/t  being  generally  restricted  to 
4icknowledgments  of  guilt. " 

Declarations  of  the  accused  as  to  the  crime  with  which 
he  is  cha^rged,  if  voluntary,  are  always  admissible  against 
him;''  but  declarations  of  third  parties  are  not  ordinarily 
admissible.^ 

A  confession  is  a  person's  declaration  of  his  agency  or 
participation  in  crime. ^  A  confession  made  in  court  or  be- 
fore an  examining  magistrate  is  judicial;  made  out  of  court, 
whether  to  an  official  or  non-official  person,  extra-judicial.'^ 

Of  the  latter  kind  are  the  preliminary  examinations, 
taken  in  writing  by  magistrates,  pursuant  to  statutes  ob- 
taining in  some  jurisdictions,  and  the  i)lea  of  '-guilty  " 
made  in  open  court  to  an  indictment.  Either  of  these  is 
sufficient  to  found  a  conviction  upon,  even  if  to  be  followed 
by  sentence  of  death,  they  being  deliberately  made,  under 
the  deepest  solemnities,  with  the  advice  of  counsel  and 
the  i)rotecting  caution  and  oversight  of  the  judge.'     The 


>  1  Bishop  Cr.  Proc,  H  1169,  1170;  1  Greeul.  Ev.  ?  380. 

-  1  Greeul.  Ev.,  'i  170. 

^  Lamb  r.  State,  66  Md.  285. 

^  State  r.  RidRely,  2  H.  &  McH.  120. 

*  People  V.  Partou,  .19  Cal.  632. 

M  Bishop  Cr.  Proc,  ?  1217. 

'  1  Greenl.  Ev..  S  216. 


104  CRIMINAL    LAW. 

plea  of  ''guilty-'  in  a  capital  case  should,  however,  be 
received  with  extreme  caution.^  lu  cases  of  doubt  as  to 
the  sanity  or  understanding  of  the  accused,  or  his  freedom 
from  pressure  or  influence,  the  proper  plan  is  for  the  court 
to  refuse  to  receive  the  plea,  but  direct  a  plea  of  ''not 
guilty  "  to  be  entered,  so  that  the  offense  maybe  duly 
proven  against  him. 

In  cases  of  extra-judicial  confessions  the  following  doc- 
trines prevail  in  this  State.  A  confession  is  not  admis- 
sible in  evidence  against  the  prisoner,  unless  it  is  freely 
and  voluntarily  made.  When  a  prisoner  has  been  told 
that  he  had  better  tell  the  truth,  and  these  expressions  are 
used  by  or  in  the  presence  of  a  person  in  authority,  the  evi- 
dence of  the  confession  thus  obtained  should  be  rejected. 
Before  permitting  a  witness  to  testify  in  regard  to  the  con- 
fession, the  court  ought  to  ascertain,  firstly,  whether  any 
inducement,  at  the  time  or  prior  thereto,  had  been  held  out 
to  the  prisoner,  and,  in  the  next  place,  whether  he  was 
influenced  by  such  inducement  in  making  the  confession. 
The  court  may,  it  is  true,  rule  out  a  confession,  even  after 
it  has  been  admitted  in  evidence,  if  satisfied,  in  the  subse- 
quent i^rogress  of  the  case,  that  it  was  not  a  free  and  volun- 
tary confession  and  may  instruct  the  jury  that  it  is  not  to 
be  considered  by  them  in  determining  the  question  as  to  the 
guilt  or  innocence  of  the  prisoner;  but,  once  in,  it  may  have 
au  influence  more  or  less  prejudicial  against  the  prisoner. 
The  preliminary  question,  therefore,  as  to  its  admissibility, 
is  one  which  ought,  in  all  cases,  to  be  decided  by  the  court, 
before  it  is  permitted  to  go  before  the  jury. ^ 

The  presumption  of  law  is,  that  the  influence  of  a  threat 
or  promise,  once  made,  continues  to  operate;  but  this  pre- 
sumption may  be  rebutted  by  other  proofs,  showing  that 
it  had  ceased  to  operate.* 

'  Comtn.  V.  Battis,  1  Mass.  95. 

2  Nicholson  v.  State,  38  Md.  140;  Biscoe  v.  State,  67  lb.  6. 

3  Peter  v.  State,  4  Sm.  &  M.  31;  State  r.  Jones,  54  Mo.  478;  Van 
Bureu  r.  State,  24  Miss.  513;  State  r.  Guild,  10  N.  J.  L.  163;  Comm. 
V.  Harman,  4  Pa.  St.  269;  Barnes  v.  State,  36  Tex.  356;  Porter  i\ 
State,  55  Ala.  95. 


THE    EVIDENCE.  105 

Evidence  oiven  or  statements  made  liv  a  jtaitv  under 
compulsion  or  order  of  court  cannot  afterwards  be  used 
against  him  in  a  criminal  proceeding.' 

A  confession  alone  ought  n<»t  to  be  sufficient  evidence 
of  the  corpus  delicti.  There  should  be  other  proof  that  a 
crime  lias  actually  been  committed;  and  the  confession 
should  only  be  allowed  for  the  purpose  of  connecting  the 
defendant  with  the  offense.* 

§  105.  —  Declarations— Res  Gestae.  —  Declarations  or 
acts  immediately  following  the  commission  of  the  act  com- 
jilained  of  are  competent  and  proper  evidence  to  exjilain 
such  act.  The  rule  ap[)licable  to  the  rea  (/estae  does  not 
require  that  the  circumstance  proposed  to  be  given  in  evi- 
dence should  have  occurred  at  the  precise  time  when  the 
principal  fact  happened;  if  it  arose  either  at  the  time  or 
so  soon  thereafter  as  to  constitute  a  part  of  the  transac- 
tion, then  it  serves  to  give  color  and  detiniteness  to  it.^ 

It  is  always  competent  for  the  State  to  prove  that  the 
party  charged  has  previously  made  false  or  contradictory 
statements  with  respect  to  the  circumstances  attending  the 
commission  of  the  crime  and  the  facts  bearing  upon  him,* 

The  declarations  of  one  conspirator  ai-e  admissible  in 
evidence  against  his  co-conspiratoivs.' 

On  a  trial  for  murder  the  a<1  missions  or  declarations  of 
third  persons  that  they  killed  the  deceased  are  not  evi- 
dence; and,  even  if  such  third  ])ersons,  on  being  examined 
as  witnesses,  im[)licate  the  jnisoner  by  their  testimony, 
evidence  of  their  declarations  that  they  were  guilty  of  the 
the  offense  is  not  admissible.* 

Evidence  offered  by  the  defense  on  an  indictment  for 
murder,  to  the  effect  that  the  deceased,  prior  to  the  homi- 
cide, threatened  the  defendant's  life  is  inadmissible,  unless 

'Reg.  r.  Garbett,  1  Den.  C.  C.  236:  U.  S.  r.  Prescott,  2  Dill  C. 
C.  40'). 

-Cooley  Coust.  Lim.  315;  1  Greeul.  Ev.  'i  217;  1  Bishop  Cr.  Proc. 
U  1058,  I0r)9;  Wharton  Cr.  Ev.,  9  eti.,  H  632,  633. 

*  Handy  r.  Johnson,  ">  Md.  450:  Robinson  r.  State,  57  lb.  14. 
^Hays  r.  State.  40  Md.  633. 

^Hays  c.  State,  .s/'/)/-(r."  Bloomer  r.  State.  4S  Md.521:  Kernan  r. 
State,  65  lb.  253. 

*  Munshower  r.  State,  55  Md.  1 1 . 


106  CRI3IINAL   LAW. 

proof  be  first  given  that  there  was  au  overt  act  of  attack, 
aud  that  the  defeudant,  at  the  time  of  the  collision,  was  in 
apparent  imminent  danger.^ 

§  106. — Dying  Declarations.  — "Dying  declarations  are 
affirmations  deriving  their  sanction,  not  from  an  oath,  but 
from  the  solemn  sense  of  impending  death,  and  they  do 
not  admit  of  the  o[)portimity  for  cross-examination.  Yet, 
for  the  i)rotection  of  human  life,  they  are  accepted  as 
anomalous  evidence  in  criminal  prosecutions  for  homicide, 
when  they  proceeded  from  the  very  person  alleged  to  have 
been  unlawfully  killed,  to  the  single  question  of  the  circum- 
stances of  the  killing  and  by  whom;  yet  to  no  greater 
extent,  and  in  no  other  causes,  civil  or  criminal,  what- 
ever. Being  admissible  against  defendants,  they  are,  con- 
sequently, so  also  in  their  favor.  "^  The  same  rules  which 
determine  the  competency  of  a  witness  prevail  also  as  to 
the  declarant;  and  the  declaration  may  be  impeached  or 
contradicti^d  in  the  same  manner  as  other  testimony.^ 

§  107. — Expert  Testimony. — Whenever  the  matter  of 
inquiry  is  such  that  inexperienced  persons  are  unlikely  to 
prove  capable  of  forming  a  correct  judgment  upon  it,  or 
when  it  so  far  partakes  of  the  nature  of  a  science  or  trade 
as  to  require  a  previous  habit,  or  experience,  or  stud}',  in 
order  to  the  attainment  of  a  knowledge  of  it,  the  opinion 
of  experts  is  admissible;  but,  if  the  matter  of  inquiry  be 
not  such  as  to  require  any  peculiar  habits  or  study  in  order 
to  qualify  a  person  to  understand  it,  then  such  evidence  is 
not  admissible.* 

Upon  a  trial  for  murder,  the  general  appearance  of  wounds 
found  upon  the  body  of  the  person  alleged  to  have  been 
killed,  the  extent  of  the  injury,  whether  they  were  inflicted 
by  a  sharp  or  a  dull  instrument,  or  came  by  accident,  are 
proper  subjects  for  the  testimony  of  a  medical  expert.^  A 
physician  may  likewise  be  called  upon  to  express  au  opinion 
as  to  what  would  be  the  result  of  pressing  violently  with 


'  Turpin  v.  State,  55  Md.  462. 

-  1  Bishop  Cr.  Proc,  '<'.  1207. 

■■•lb.,  (J  1209. 

*  Davis  V.  State,  38  Md.  15. 

*Ib. ;  Williams  r,  State,  64  Md.  384. 


THE    EVIDENCE.  107 

the  fool  upon  the  neck  of  ;i  iiiaii  lying  on  the  ground.' 
Medical  books,  however,  are  not  admissible  in  evidence, 
either  for  the  i)uri)ose  of  sustaining  or  contradicting  the 
opinion  of  a  witness.^  A  medical  witness  in  a  trial  for 
murder,  who  hears  the  physician  who  examined  the  body 
of  the  deceased  fully  describe  the  wounds  on  the  head  and 
the  fracture  of  the  skull,  and  hears  several  witnesses  de- 
scribe the  construction  and  condition  of  a  sink  in  which 
the  body  was  found,  is  com[)etent  to  testify  whether  such 
wounds  and  fracture  were  likely  to  have  been  occasioned 
by  accidentally  falling  into  the  sink,  and  the  fact  that  he 
does  not  hear  the  whole  cross-examination  of  the  physician 
who  described  the  wounds  and  fracture  on  the  head  does 
not  attect  his  competency.^  But,  while  an  expert  may 
gives  his  oi)iniou  upon  facts  assumed  to  have  been  estab- 
lished, he  will  not  be  allowed  to  state  his  opinion  upon  the 
conclusions  and  inferences  of  other  witnesses.^ 

§  108. — Almanacs. — Courts  have  received  as  evidence 
weather  reports,  reports  of  the  state  of  the  markets,  price 
currents  and  insurance  tables,  tending  to  show  the  probable 
duration  of  human  life,  and,  upon  a  trial  for  murder,  it  was 
held  competent  for  the  State  to  offer  in  evidence  an  almanac, 
for  the  ])urpose  of  proving  at  what  hour  the  moon  rose  on 
a  certain  night.'' 

§  109. — Relevancy. — The  evidence  must  be  relevant  to 
the  issue."  On  a  trial  for  murder,  evidence  of  what  occurred 
at  a  saloon,  half  a  square  from  another  saloon  where  tbe 
homicide  occurred,  and  only  four  or  live  minutes  before  the 
killing  is  admissible  to  show  the  movements  and  general 
conduct  of  the  prisoner  immediately  preceding  the  killing. 
What  was  said  and  done  by  others  at  the  same  time  and 
in  company  with  the  prisoner  was  held  to  be  admissible 
upon  such  charge.' 


'  Williams  r.  State,  64  Md.  384. 

-  Davis  i\  State,  38  Md.  15. 

'  Davis  r.  State,  stipra. 

■*  Williams  r.  State,  supra. 

*Miinshower  '■.  State,  o")  Md.  11. 

"Hays  r.  State,  40  Md.  633:  Chelton  r.  State,  4.")  lb.  504;  Muu- 
shower  r.  State,  55  lb.  11;  Turpiu  r.  State,  lb.  462;  Donovan  c.  State, 
64  lb.  365. 

'Kernan  r.  State,  65  Md.  2.53. 


108  CRIMINAL   LAW. 

Proof  that  a  luau  has  violated  the  law  in  particular  in- 
stances cannot  be  rebutted  by  proof  that  he  did  not  violate 
it  in  other  instances  where  he  had  the  opportunity  and 
temptation  to  do  so.^  But  evidence  of  other  acts  than  that 
charged  may,  under  certain  circumstances,  be  admitted  for 
the  puri)ose  of  proving  guilty  knowledge  on  the  part  of  the 
accused.  Thus,  where  a  party  is  indicted  for  uttering  a 
forged  instrument,  knowing  the  same  to  be  forged,  it  is 
competent  for  the  State,  in  order  to  prove  the  scienter,  to 
show,  that,  at  or  about  the  time  of  the  forgery  charged 
in  the  indictment,  the  defendant  held  and  uttered  simi- 
lar forged  instruments;"  and,  upon  an  indictment  for 
attempting  to  procure  a  miscarriage  and  an  abortion,  evi- 
dence of  an  attempt  by  the  defendant,  made  subsequent  to 
the  act  charged,  to  accomplish  the  same  purpose  by  a  differ- 
ent means  is  admissible,  in  order  to  prove  the  purpose  in 
the  former  attempt.*  Upon  a  trial  for  murder,  the  State 
may  prove,  as  bearing  upon  the  (piestion  of  malice,  that,  on 
the  day  before  the  fatal  assault  and  several  days  prior 
thereto,  the  accused  had  beaten  and  otherwise  maltreated 
the  deceased.*  Upon  the  trial  of  an  indictment  for  the  sale 
of  liquor  without  a  license,  where  it  appeared  that  the 
traverser  had  kept  cigarettes  for  sale  and  ostensibly  given 
away  a  drink  of  whiskey  with  the  purchase  of  cigarettes, 
testimony  was  allowed  to  be  given  on  the  part  of  the 
State,  in  order  to  proNe  the  real  nature  of  the  transac- 
tion, that,  on  other  occasions  than  that  stated  in  the  indict- 
ment and  about  the  same  time,  cigarettes  had  been  sold  by 
the  traverser  at  a  sum  dis[)roportioned  to  their  value,  and 
that,  with  each  purchase,  a  drink  of  liquor  was  ostensibly 
given  away  by  the  traverser.^ 

A  defendant,  u])on  a  trial  for  burglary,  in  order  to  prove 
that  he  entered  the  dwelling-house  in  question  with  intent, 
not  to  commit  a  felony,  but  to  commit  adultery  with  a 
woman  in  the  same,  may  offer  in  evidence  facts  tending  to 


'Archer  c.  State,  45  Md.  33. 

-  Bishop  r.  State,  55  Md.  138;  Bell  r.  State,  57  lb.  108. 

'■'  Lamb  v.  State,  66  Md.  285. 

•■  Williams  v.  State,  64  Md.  384. 

*  Archer  v.  State,  supra. 


THE    EVIUENCK.  lO'J 

show  siH'cific  illicit  relations  between  tin-  two  parties.' 
Wherever  a  si)e<'ilic  intent  is  an  essential  inj^redient  of  the 
ott'ense  eharj;e<l,  the  delendant  inav  testily  as  to  the  sanie;'- 
but  this  rule  does  not  apply  where  the  act  charged  is  pro- 
hibited MiiconditioiiiillN .  ■ 

^  110.— Allegations  and  Proof.  — Surplusage.— The  rule 
strictly  confining  the  evidence  to  the  i)oint  in  issue  and 
requiring  the  allegations  and  proof  to  correspond  is  more 
rigidly  applied  in  criminal  than  in  civil  cases.*  Mere  sur- 
plusage, however  need  not  be  proved.'  Language  merely 
formal  and  allegations  that  are  wholly  unnecessary  may  be 
rejected  upon  the  trial  of  an  indictmeut,  nor  is  it  ab.solutely 
necessary,  in  every  instance,  to  prove  the  offense  to  the 
whole  extent  laid;"  but  an  allegation  in  an  indictment 
which  describes,  defines,  qualifies  or  limits  a  matter  mate- 
rial to  be  charged  is  a  descriptive  averment  and  ujust  be 
proved  as  laid,  even  though  such  particular  description  was 
unnecessary.'  •'  No  allegation,  whether  it  be  necessary  or 
unnecessary,  whether  it  be  more  or  less  particular,  which 
is  descriptive  of  the  identity  of  that  which  is  legally  essen- 
tial to  the  charge  in  the  indictment,  can  ever  be  rejected 
as  surfjlusage."* 

§  111. — Proof  of  Time. — Statute  of  Limitations. — In 
general,  the  proof  of  the  offense  need  not  corresi)ond  in 
day  of  the  month  and  year  with  the  allegation.^  Any  day, 
before  or  after,  within  the  statute  of  limitations  and  before 
the  bringing  of  the  prosecution  will  suffice."  But,  when 
time  enters  into  the  nature  of  the  offense,  it  must  be  laid 
and  proved  with  particularity;"  and,  when  time  is  alleged 


'  Robinson  r.  State,  53  Md.  151. 

'Fenwick  v.  State.  03  Md.  239. 

=*  Carroll  r.  State.  63  Md.  551. 

*3  Russell  Or.  279;  Stewart  r.  State.  62  Md.  412. 

'=>  U.  S.  (;.  Vickery,  1  H.  «&  J.  427. 

"Comm.  r.  Griffin.  21  Pick.  523. 

^  Wharton  Cr.  Ev.,  9  ed..  'i  14G:  1  Bishop  Cr.  Proc,  'i'i  485-487. 

*Per  Story,  J.,  U.  S.  r.  Howard,  3  Sumn.  12,  15.  Cf.  State  r. 
Jackson,  30  Me.  29:  Turner  r.  State,  3  Heisk.  452;  People  r.  Jones. 
5  Laus.  340;  R.  r.  Deeley.  1  Moody,  303. 

"1  Bishop  Cr.  Proc,  >/.  400. 

'"lb.;  Capritz  r.  State,  1  Md.  509;  Clayton  r.  State,  60  lb.  272. 

"  1  Bishop  Cr.  Proc,  HOI- 


110  CRIMINAL   LA"W. 

in  a  form  descriptive  of  the  ofiense,  it  must  be  proved  as 

laid.^ 

In  tliis  State  it  is  provided  by  statute,  that  no  prosecu- 
tion or  suit  shall  be  commenced  for  any  tine,  penalty  or  for- 
ieiture,  or  any  misdemeanor,  exce[)t  those  punished  by  con- 
finement in  the  Penitentiary,  unless  within  one  year  from 
the  time  of  the  offense  committed,*  and  that  all  actions  or 
prosecutions  for  blasphemy  and  Sabbath-breaking,  or 
drunkenness,  shall  be  made  withiu  one  month  after  the 
fact.*  The  statute  of  limitations  in  criminal  cases  is  a  rule 
of  evidence,  and  the  proof  must  affirmatively  show  tlie 
offense  to  have  been  committed  within  the  period  limited.* 

§  112. — Sufficiency  of  Evidence. — In  criminal  cases  the 
jury  may  find  the  prisoner  or  accused  guilty  only  when 
convinced,  by  the  evidence,  of  his  guilt  beyond  a  reasonable 
doubt."  This  doctrine  extends  to  all  classes  of  offenses,^ 
but  applies  only  to  the  corpuH  delicti'  and  the  question  of 
the  identity  or  criminal  agency  of  the  accused,*  not  to  collat- 
eral matters.-'  The  law,  in  all  cases,  raises  a  i)resumption 
of  innocence  in  favor  of  the  accused,  and  this  presumption 
can  only  be  overcome  by  such  proof  as  shall  be  inconsistent 
with  the  hypothesis  of  his  innocence  and  exclude  every 


1  U.  S.  V.  McNeal,  1  Gall.  387;  Comm.  v.  Monahan,  9  Gray.  119. 

'Code,  ait.  57.  sec.  10. 

^Ib.,  s=ec.  11. 

■•  R.  V.  Phillips,  R.  &  R.  369;  U.  S  c.  Smitli.  4  Day.  131, 128;  Comm. 
f.  Ruffner,  28  Pa.  St.  259;  World  v.  State,  50  Md.  49. 

A  scire  facias  issued  in  the  name  of  the  State  to  secure  the  for- 
feiture of  the  charter  of  a  corporation  is  not  a  suit  for  a  fine  or 
forfeiture  within  the  meaning  of  this  statute. — Wash.  &  Balto. 
Turnpike  Road  v.  State.  19  Md.  239,  294.  The  sale  of  liquor  on  Sun- 
day is  not  Sabbath-breaking  withiu  the  meaning  of  section  11,  above 
quoted,  but  prosecutions  for  this  offense  come  within  section  10, 
above  quoted,  and  may  be  brought  within  one  year  from  the  date  of 
the  offense. — State  v.  Popp,  45  Md.  432;  Seim  v.  State,  55  lb.  566. 
Prosecutions  for  bastardy  must  be  commenced  within  one  year, 
from  the  date  of  the  birth  of  the  child.— Bake  v.  State,  21  Md.  422; 
Neff  V.  State,  57  lb.  385. 

•'Snyder  v.  State,  59  Ind.  105;  Bressler  v.  People,  117  111.  424. 

"l  Bishop  Cr.  Proc  ,  i*  1094;  Norwood  v.  State,  45  Md.  68,  75. 

^Norwood  V.  State,  supra. 

"  1  Bishop  Cr.  Pcoc,  i  1060. 

"Norwood  V.  State,  supra. 


THE  EVIDENCE.  Ill 

reasonable  doubt  tlieieof. '  In  a  leading  case,^  the  jury 
were  instructed,  "that  tlie  government  is  bound  to  i)rove 
the  defeiKbint  guilty  beyond  all  reasonable  doubt  an<l  to  a 
moral  certainty;  and,  unless  the  evidence  in  the  case  satis- 
fies them  to  that  extent,  they  ought  to  acquit  the  defend- 
ant.■"  It  is  said  by  high  authority,*  that  there  are  no  words 
plainer  than  "  reasonable  doubt,"  and  none  so  exact  to  the 
idea  meant,  and  that  the  books  do  not  contain  one  attirma- 
f  ive  dehnition  which  can  safely  be  pronounced  both  helpful 
and  accuiate.  The  delinition  ofteuj'st  (pioted,  i)erhaps,  is 
that  which  states  that  a  reasonable  doubt  is  that  state  of 
the  ease,  which,  after  the  entire  comparison  and  considera- 
tion of  ail  the  evidence,  leaves  the  minds  of  the  Jurors  in 
that  condition,  that  they  cannot  say  they  feel  an  abiding 
conviction,  to  a  moral  certainty,  of  tlie  truth  of  the  charge.* 
§  113. — Prosecutions  for  Second  Offenses. — If  a  party 
be  proceeded  against  for  a  second  or  third  olfense  under  a 
statute,  and  the  sentence  prescribed  be  different  from  the 
first  and  severer,  by  reason  of  its  being  such  repeated 
offense,  the  fact  thus  relied  on  must  be  averred  in  the 
in<lictment,  and  the  averment  of  prior  conviction  can 
only  be  sustained  by  the  production  of  the  record,  or  a  duly 
certified  copy  thereof,  sustained  by  proof  of  the  identity  ol" 
the  person  on  trial  with  the  one  described  in  the  former 
indictment.^ 


'  People  c.  Padilliii,  42  Cal.  oS');  Beaver  i-.  State,  08  Ind.  530:  IJlock 
/".  State.  1  Tex.  App.  368. 
-Co mm.  i\  Uoodwin.  14  Gray,  ")•"). 
3  1  Bishop  Or.  Free,  'i  1094. 

^Comm.  1:  Webster,  5  Cush.  29G,  310.     Ct.  Miles  v.  U.  S.,  103  U. 
'S.  304,  311. 

'  Maguire  v.  State,  47  Md.  4S5. 


CHAPTEll  X. 

The  Vekdict  and  Subsequent  ProceedingtS. 

§  114. — The  Verdict. — General  Doctrine. — The  ver- 
dict is  the  unaniinons  decision  imule  by  a  juiy  and  reported 
to  the  court  on  the  matters  lawlnlly  siil)niitte(l  to  tliem  in 
the  course  of  the  trial.' 

Unanimity  is  indispensable  to  the  sufficiency  of  the  ver- 
dict." It  is  also  necessary  that  the  verdict  sliould  be  upon 
all  the  matters  involved  in  the  issue,  and,  where  there  are 
several  issues,  upon  all  the  issues.  Where  an  indictment 
containing  two  counts  is  submitted  to  the  jury  u[)on  the 
plea  of  not  guilty,  it  is  their  duty  to  find  both  issues  in  their 
verdict;  and,  if  the  jury  find  the  prisoner  guilty  upon  one 
issue,  as  upon  the  inferior  offense,  and  do  not  find  the  other 
issue,  the  verdict  should  be  set  aside. ^  Where  issue  is 
joined  upon  an  indictment  m\o\\'u\g  different  (jrades  of  the 
same  offense^  and  the  party  is  acquitted  of  the  higher  and 
convicted  of  the  lower  grade,  the  verdict  must  find  specifi- 
cally not  guilty  of  the  higher  and  guilty  of  the  inferior 
charge.*  Where  the  indictment  contains  several  counts,  a 
general  verdict  of  guilty  is  sufHcient.^  Upon  such  a  verdict, 
judgment  may  be  rendered,  if  there  be  one  good  count." 
The  general  rule  by  which  the  sufficiency  of  a  verdict  is  to 
be  determined  is,  to  ascertain  ichether  it  covers  the  indict- 
ment.'' 

§  115.— Verdicts  in  Cases  of  Homicide. — It  is  provided 
by  statute,  that  the  jury  before  whom  any  person  indicted 
for  murder  shall  be  tried  shall,  if  they  find  suck  person 

1  Ford  V.  State,  12  Md.  514,  549. 

•■'State  r.  Sutton,  4  G.  494. 

•'State  V.  Flannigan,  6  Md.  167. 

5  Manly  r.  State.  7  Md.  135;  Stevens  r.  State.  66  lb.  202. 

« Gibson  v.  State,  54  Md.  447. 

'  VVeighorst  r.  State,  7  Md.  442. 


THE   VEKDrrr     \\1)    smSEC^UENT    I'Rr.rEEDINfrS.       ]]'^ 

guilty  tlierpof,  ascertain  in  their  verdict,  whether  it  he 
innr(h'i'  in  the  tirsi  or  .second  dej;ree;  l)iit,  if  such  person  be 
convicted  by  confession,  the  court  shall  proceed,  by  exami- 
nation of  witnesses,  to  determine  the  de<,nee  of  the  crime 
and  t^o  j^ive  sentence  accordinj4ly.'  A  verdict  of  ''j;;uilty" 
ui)on  an  indictment  for  murder,  under  this  statute,  is  a 
nullity;-  but  a  verdict  of  "guilty  of  murder  in  the  second 
degree,"  without  negativing  guilt  in  the  first  degree,  is 
sulhcient.-'  A  verdict  of  "guilty  of  manslaughter,"'  liow- 
ever,  without  saying  not  guilty  of  murder,  is  erroneous.' 

§  IH). — Verdicts  in  Second  Offense  Cases. — It  has 
been  held  in  this  tState,  that,  in  order  to  justify  a  sentence 
as  for  a  second  ottense,  it  must  ai)pear  by  the  verdict  that 
the  Jury  have  found  the  party  guilty  of  a  second  ottense, 
not  guilty  generally. ' 

§  117.— Rendition  of  the  Verdict. — When  the  jurors 
liave  signitied  that  they  are  prepared  to  render  their  ver- 
dict, they  are  brought  into  court  and  asked  by  the  clerk, 
whether  they  have  agreed  upon  their  verdict  and  who  should 
say  for  them,  to  which  they  resi)ond,  that  they  have  and 
that  their  foremau  should  say  for  them.  Whereupon  the 
clerk  tells  the  prisoner,  if  the  charge  be  felon}',  uqt  in  cases 
of  misdemeanor,^  to  hold  ui)  his  right  hand,  and  requests 
the  jurors  to  look  upon  him"  and  say  whether  he  is  guilty  or 
not  guilty.  The  answer  being  given,  he  writes  the  word 
"guilty,"  or  "not  guilty,"  as  may  be.  upon  the  docket,  and 
again  addresses  the  jury:  "Hearken  to  your  verdict  as  the 
court  hath  recorded  it;  you  say,  that  A.  B.  is  [not]  guilty 
of  the  felony  (or  misdemeanor)  whereof  he  stands  indicted, 
and  so  say  you  all.""  To  make  sure  that  the  verdict  is 
unanimous,  the  jurors  may  be  polled,  i.  e.,  examined  by 
poll,  each  juror  being  required  separately  to  declare  "his 
venlict.     This   right,   carrying  with   it   the  right  in    each 


'Code,  art.  27,  sec.  21o. 

-Ford  r.  State,  12  Md.  '>\^:  Williams  '•.  State,  60  lb.  402. 

3  Weighorst  r.  State.  7  Md.  442. 

••State  r.  Flauuigau,  6  Md.  1(>7. 

^  Maguire  v.  Stale,  47  Md.  485,  498. 

M  Bishop  Cr.  Proc,  i!  1001. 

"  lu  cases  of  misdemeauor  this  is  omitted.     lb. 

"*Ib.;  Ford  r.  State,  supra. 

8 


114  CRIMINAL   LAW. 

juror  to  dissent  wlieii  questioned,  belongs  to  either  party, 
and  the  direction  may  be  given  by  the  court  of  its  own 
motion.* 

§  118. — Verdicts  where  Defense  is  Insanity — When 
any  person  indicted  for  a  crime  or  misdemeanor  shall  allege 
insanity  or  lunacy  in  his  defense,  the  jury  impanelled  to 
try  such  per.son  shall  find  by  their  verdict  whether  snch 
person  was,  at  the  time  of  the  commission  of  the  offense,  or 
still  is  insane,  lunatic  or  otherwise.^  If  the  jury  find  by 
their  verdict  that  such  person  was,  at  the  time  of  commit- 
ting the  offense,  and  then  is  insane  or  lunatic,  tlie  court 
before  which  trial  was  had  shall  cause  such  person  to  be 
sent  to  the  almshouse  of  the  county  or  city  in  which  such 
person  resided  at  tbe  time  of  the  commission  of  such  act, 
or  to  a  hosi)ital,  or  some  other  place,  better  suited,  in  the 
judgment  of  the  court,  to  the  condition  of  such  prisoner, 
there  to  be  confined  until  he  shall  have  recovered  his  reason 
and  be  discharged  by  due  course  of  law.^  Where  any 
person,  arrested  for  irai)roper  or  disorderly  conduct,  or 
charged  with  any  crime,  offense  or  misdemeanor,  against 
whom  no  indictment  has  been  found,  shall  appear  to  the 
court,  or  be  alleged  to  be  a  lunatic  or  insane,  the  court  shall 
cause  a  jury  of  twelve  good  and  lawful  men  to  be  im- 
panelled forthwith,  and  shall  charge  said  jury  to  inquire, 
whether  such  person  was,  at  the  time  of  the  comtnission  of 
the  act  complained  of,  insane  or  lunatic,  and  still  is  so;  and, 
if  such  jury  shall  find  that  such  person  was,  at  the  time  of 
the  commission  of  such  act,  insane  or  lunatic,  and  still  is 
so,  the  court  shall  direct  such  person  to  be  confined  as 
directed  in  the  preceding  section,  at  the  expense  of  the 
county  or  city,  as  the  case  may  be,  until  he  shall  liavc^  re- 
covered and  be  discharged  by  due  course  of  law.*  If,  during 
the  recess  of  the  Circuit  Court  for  any  county,  or  the  Crim- 
inal Court  of  Baltimore,  any  person  appearing  or  alleged 
to  be  insane  or  lunatic  shall  be  arrested  and  charged  with 
any  crime  or  misdemeanor  before  the  judge  thereof,  the 


'  1  Bishop  Cr.  Proc.  §  1003;   Ford  v.  State,  12  Md.  514;   Williams  v. 
State,  60  Md.  402;  Biscoe  v.  State,  68  lb.  294. 
*  Code,  art.  i")9,  sec.  4. 
'lb.,  sec.  "). 
"lb.,  sec.  6. 


THE   VERDICT   AND   SUBSEQUENT   PROCEEDINGS.       Ill 

said  Jii(l;;c  shall  issue  an  ordci-  to  tlie  slicrill  of  tlic  comity 
or  city  wlunc  said  oiicuso  lias  l)eoj)  cornrnitted,  ic(jiiiiiiiff 
liiin  toithwitli  to  suniiiioii  a  jury  of  twelve  ji;ood  and  lawful 
men,  and  to  charge  sucdi  jury  to  in(|uire,  whetluM-  such 
person  was  lunatic  or  insane  at  the  time  such  ofiense  was 
committed,  and  still  is  so;  and,  if  the  jury  find  that  the 
l)aity  (diarged  was  insane  or  lunatic  at  the  time  of  the 
i'ominission  of  the  ofiense,  and  still  is  so,  the  judge  shall 
commit  such  person  as  directed  in  the  i)recedino^  section/ 
The  provisions  of  the  preceding  sections  shall  ap[)ly  to  the 
case  of  any  person  who  may  be  arrested  on  any  process 
issued  by  any  couit  or  judge  of  this  State,  founded  on  oath, 
requiring  security  to  keep  the  peace,  and  who  shall  fail  to 
give  such  security.-  If  any  insane  or  lunatic  i)erson, 
mentioned  in  the  three  preceding  sections,  shall  be  possessed 
of  real  or  personal  property,  the  annual  jiroiit  or  rent  of 
which  shall  be  adequate  to  his  reasonable  support  in  any 
hospital  or  asylum  for  the  recei)tiou  of  insane  or  lunatic 
l)ersons,  the  court  or  judge  shall  api)oint  a  ti'ustee  for  the 
estate  of  said  lunatic  or  insane  i)erson,  and  shall  require 
the  said  trustee  to  give  bond  to  the  State  of  Maryland,  in 
such  jienalty  and  with  sucli  security  as  the  court  or  judge 
shall  approve,  with  condition  that  he  will  cause  the  said 
lunatic  or  insane  person  to  be  confined  and  sui)ported  in 
some  hospital  or  insane  asylum  until  such  jierson  shall  have 
recovered  his  reason,  and  that  he  will  faithfully  administer 
an<l  fully  account  for  all  such  estate,  income  and  eH'ects  of 
said  lunatic  or  insane  person  as  shall  come  to  his  possession 
or  be  under  his  care  or  directiou.'' 

§  111). — Effect  of  Verdict. — If  the  defendant  be  ac- 
quitted, even  though  the  a('<piittal  be  erroneous,  he  can 
not  be  tried  again,'  but,  if  the  judgment  be  reversed,  the 
party  may  be  indicted  dc  noro.''  If  a  defendant  goes  to 
trial  upon  a  defective  indicfmeuf,  without  taking  advantage 
of  the  defect  in  the  mode  pointed  out  by  law,  a  verdict  of 
guilty  is  conclusive  against  him;  there  is  no  mistrial,  and 


'  Code,  art.  59,  sf-c.  7. 

-lb.,  sec.  S. 

Mb.,  sec.  9. 

•■Shields  i:  State,  49  Md.  301. 

^  State  c.  Buchanan,  o  H.  &  J.  olT,  3'29. 


116  CRIMINAL   LAW. 

he  is  not  liable  to  be  tried  again  for  the  same  offense.^ 
The  qnnsliinij  of  an  indictment  does  not  operate  as  an 
acquittal  or  i)revent  the  <lefendant  from  being  again  in- 
dicted.- Where  the  same  facts  that  were  given  in  evidence 
upon  a  trial  which  resulted  in  an  acquittal  become  material 
to  the  proof  of  a  different  charge,  the  acquittal  does  not 
operate  to  render  evidence  of  such  facts  inadmissible.^  In 
cases  of  prosecutions  for  conspiracii,  when  two  ]iersons  only 
are  charged,  tlie  accjuittal  of  one  is  the  acquittal  of  both.* 

§  120. — Mistrial. — When  there  has  been  no  valid  and 
sufficient  verdict,  there  is  said  to  be  a  mistrial,  and  the 
defendant  may  be  tried  again. ■■  Likewise,  if  the  indict- 
ment be  quashed  for  defect  of  form,  the  defendant  may  be 
re-indicted  and  re-tried,*  and  where  a  judgment  is  reversed 
for  error  in  the  rulings  of  tlie  court,  the  trial  is  a  mistrial 
and  does  not  relieve  the  defendant  from  further  liability." 
It  is  only  when  there  has  been  a  final  verdict,  either  of 
acquittal  or  conviction,  that  the  defendant  can  not  be  a 
second  time  place  in  Jeoi)ardy  for  the  same  offense.*  With- 
out a  verdict  arrived  at  by  the  jury,  or  the  court,  if  the 
defendant  dispenses  with  a  jury,  there  can  be  neither  an 
acquittal  nor  a  conviction."  Hence,  when  the  court  is 
equally  divided,  there  is  said  to  be  a  mistrial,  in  the  same 
manner  asif  a  jury  had  failed  to  agree. ^"  When  the  defend- 
ant has  been  regularly  convicted  and  the  judgment  is 
afterwards  reversed  for  error  in  the  sentence^  he  can  not,  at 
common  law,  be  re-tried.     Such  a  trial  is  not  a  mistrial." 

§  121. — Arrest  of  Judgment. — A  motion  in  arrest  of 
judgment  must  be  founded  upon  some  error  apparent  upon 


•  State  V.  Reed.  12  Md.  263. 
^Nefif  V.  State,  o7  Md.  38.-). 
•■'Bell  r.  State,  57  Md.  108. 

^  Bloomer  v.  State,  48  Md.  521,  536. 

*  Ford  V.  State,  13  Md.  514,  549:  State  v.  Sutton,  4-  G.  494;  State  v. 
Williams,  5  Md.  82. 

'Cochrane  r.  State,  6  Md.  400. 

"Cochrane  r.  Stale,  svpra;  Kearney  v.  State,  48  Md.  16,  27. 

« Hoffman  v.  State,  20  Md.  425. 

»  League  r.  State,  36  Md.  257. 
"'League  r.  State,  s?'/)ra. 
"  McDonald  r.  State.  45  Md.  90. 


TIIK.    VKKDlfT    ANT)    SI'15SK(aTENT    PKOrEEDIN<iS.       117 

the  face  ol'  Mic  record;  extrinsic  or  loreijun  matters  not  so 
appearinf*'  are  w  holly  unavailable  tor  this  [)urpose.' 

Alter  a  general  verdict  of  y:nilty  ni)on  an  indictment 
contiiiniiij;  several  counts,  if  it  appear  that  there  is  one 
good  count,  Judgment,  at  common  law,  will  not  be  set  aside 
or  anested;-  and,  by  statute,  judgment  can  not  be  arrested 
for  defects  which  could  be  reached  by  demurrer.^ 

§  VJ'J. — Judgment. — Sentence. — Judgments  in  criminal 
cases  must  be  iu  strict  contbrmity  with  the  law.  "Is'othing 
is  more  im])ortant  than  that  the  rights  of  the  (;itizen  should 
be  well  detined  and  the  power  of  justice  exactly  <leclared 
by  the  law,  whose  re(piirements  ought  to  be  strictly  and 
rigidly  observed."^  But,  if  a  lighter  burden  is  imposed  by 
the  sentence  on  a  convict  than  the  law  authorizes,  the 
prisoner  ought  not  to  have  the  privilege  of  a  reversal  and 
discharge  on  that  account.^ 

Where  the  penalty  is  a  fine,  the  party  must  be  lined  in 
the  name  of  the  State,  though  other  persons  are  ultimately 
entitled  to  the  money.* 

In  order  to  justify  a  sentence  as  for  a  second  ofense,  it 
has  been  held,  that  it  must  appear  by  the  verdict  that  the 
jury  have  specifically  found  the  party  guilty  of  such  second 
oflense,  and,  if  the  verdict  be  guilty  generally,  without 
anything  more,  the  judgment  to  be  entered  on  it  can  only 
be  as  for  a  first  ottense." 

The  punishment  must  be  iu  accordance  with  the  law  as 
it  stands  at  the  time  of  final  jitd(/ment.  A  i)arty  can  not  be 
convicted  after  the  law  under  which  he  may  be  prosecuted 
has  been  re])ealed,  though  the  offense  may  have  been 
committed  before  the  repeal,  and  the  same  principle  applies 

'  Archer  r.  State.  45  Md.  447:  thet-u  r.  State,  59  lb.  123;  Byers  r. 
State,  (5:5  lb.  207. 

-Manly  r.  State,  7  Md.  135;  (iibson  r.  State,  54  lb.  447. 

•■•Code.  art.  27,  sec  2!?6;  Cochraue  r.  State,  G  Md.  400. 

MValkins  r.  State,  14  Md.  412,  423;  Cornish  r.  State,  15  lb.  208: 
McDonald  r.  State,  45  lb.  90. 

*  Isaacs  r.  State,  23  Md.  410.     Cf.  U.  S.  '•.  Vickery.  1   11.  &  J.  427. 

«Rawlings  r.  State.  2  Md.  201,  216. 

'  Maguire  r.  State,  47  Md.  485,  498. 


118  CRIMINAL    LAW. 

where  the  law  is  repealed  or  expires  pending'  an  ap[)eal  or 
writ  of  error  from  the. judgment  of  an  inferior  court.' 

A  reversal  of  the  judgment,  at  common  law,  operates  to 
discharge  the  defendant  from  punishment.^ 

Courts,  in  both  civil  and  criminal  cases,  retain  power 
over  their  judgments  and  orders  during  the  term  at  which 
they  are  entered  or  made,  and  may,  during  that  time,  set 
them  aside,  or  change  or  modify  them,  as  circumstances 
may  require.^ 

§  123.  —  Same  Subject  —  Statutory  Provisions. — All 
claims  to  dispensation  from  punishment  by  benefit  of 
clergy  are  forever  abolished;  and  every  person  convicted 
of  any  felony  heretofore  deemed  clergyable  shall  be  sen- 
tenced to  undergo  a  confinement  in  the  Penitentiary  for 
any  time  not  less  than  eighteen  months  nor  more  than  five 
years,  except  in  those  cases  where  some  other  specific 
penalty  is  prescribed  by  this  Code.  And  every  person  who 
shall  be  convicted  of  any  felony  heretofore  excluded  from 
the  benefit  of  clergy  shall  be  sentenced  to  undergo  a  con- 
finement in  the  Penitentiary  for  not  less  than  five  nor  more 
than  twenty  years.* 

'  Kelter  r.  State,  12  M..1.  322;  Mayor  v.  State,  30  lb.  112:  Griffith  v. 
State,  33  lb.  XI;  Proud  v.  State,  lb.  Xll:  Smith  r.  State,  45  lb.  49. 
Cf.  State  r.  Tibbs,  3  H  &  McH.  83. 

-  Blaclj  V.  State.  2  Md.  370;  Cochrane  c.  State,  6  lb.  400;  Keller  v. 
State,  12  lb.  322;  Watkins  v.  State,  14  lb.  412. 

^Seth  r.  Chamberlaiue,  41  Md.  186,  194. 

"Code,  art.  27,  sec.  292. 

Benefit  of  clergy  consisted  in  being  excused  from  capital  punish- 
ment. The  number  of  felonies  at  common  law  was  but  small,  con- 
sisting, according  to  Coke,  of  seven,  to  wit:  homicide,  rape,  burglary, 
arson,  robbery,  theft,  mayhem.  All  these,  except  petty  larceny 
(stealing  things  worth  less  than  twelvepence)  and  mayhem,  were 
punished  with  death  and  were  originally  subject  to  the  privilege  of 
clergy.  It  is  said  that  higi\  treason  against  the  king  was  never 
clergyable:  and  there  were  also  two  forms  of  felony  which  were  ex- 
cluded from  the  benefit  of  clergy  at  common  law,  namely,  "  m- 
sidintirj  viarinii  et  depopulutio  ayrorum^''''  or  highsvay  robVtery  and 
wilful  burning  of  liouses.  The  above  statute  provision,  in  nearly 
its  present  form,  is  a  codification  of  the  Act  of  1809,  c  13,  sec.  11. 
Prior  to  that  time  benefit  of  clergy  prevailed,  regulated,  however, 
by  the  Act  of  1737,  c  2.  See,  in  general,  1  Stephen  Hist.  Cr.  L.  pp. 
459-472. 


TIIK    VKUDK 'T    AND    SlTl{SI':<jITKNT    PROCEEDINGS.       11!> 

If  any  orteinU'r,  on  conviction,  may  be  sentence*]  to 
sutler  (leatli,  the  court  helbit^  wlioni  such  olfendei  shall  be 
tried  and  convicted  shall  sentence  him  to  sutier  death  by 
han.uin;j:  by  the  neck.' 

\\'hcre  a  case  has  been  removed  Tor  trial,  and  the  paity 
shall  I>e  sentenced  to  be  hunjn",  the  court  shall  remand  him 
to  the  place  where  the  indictment  was  toun<l,  where  the 
sentence  shall  be  executed,  as  if  passed  in  that  place. - 

It  shall  be  the  duty  of  the  courts  of  this  State,  in  sen- 
tencing convicts  to  the  Penitentiary,  to  sentence  them  lor 
such  a  period  as  will  ex[)ire  between  the  tirst  day  of  April 
and  the  last  day  of  August,  if  they  shall  deem  it  exi)edient 
to  do  so.' 

No  conviction  or  attainder  shall  work  corruption  of  blood 
or  forfeiture  of  estate;  the  estate  of  such  persons  as  shall 
destroy  their  own  lives  shall  descend  or  vest  as  in  case  of 
natural  death;  if  any  jierson  be  killed  by  casualty,  there 
shall  be  no  forfeiture  in  consequence  thereof;  an  approver 
sliali  never  be  ad  nutted,  iu  any  case  whatsoever;  and  a 
sentence  of  death  shall  not  be  executed  in  less  than  twenty 
days  after  judgment.^ 

The  real  and  personal  estate  of  the  person  convicted  and 
sentenced  to  undergo  a  confinement  in  the  Penitentiary, 
or  to  be  executed,  shall,  after  paying  retribution  and 
reparation  to  the  party  injured,  be  liable  to  the  discharge 
of  the  expenses  incurred  by  the  State  in  the  apprehension, 
prosecution,  conviction,  and  removal  of  such  criminal; 
and,  in  order  to  ascertain  the  amount  thereof,  the  court 
before  whom  such  ollender  is  conxicted  shall  cause  its  clerk 
to  certify  to  the  warden  of  the  Penitentiary  the  amount  of 
rejjaration  adjudged  and  all  costs  autl  charges  incurred  in 
the  prosecution  and  conviction  of  such  offender,  which  the 
warden  shall  enter  iu  books  to  be  l)y  him  kept  for  that 
purpose.^ 

In  all  cases  where  restitution  or  reparation  is  adjudged 
to  be  made  to  the  party  injured,  and  immediate  restitution 

'  Code,  art.  27,  sec.  293. 
-lb.,  sec.  294. 
■'lb.,  sec.  299. 
•■lb.,  sec.  301. 
Mb.,  sec.  302. 


120  CRIMINAL   LAW. 

or  reparation  is  not  fully  made,  the  court  before  whom  the 
offender  is  convicted  shall,  at  the  instance  of  the  i)arty 
injured,  issue  execution  against  the  property  of  such  con- 
victed person,  in  the  name  of  the  person  injured,  for  the 
value  of  the  property  taken,  or  so  much  thereof  as  is  not 
restored,  such  value  to  be  estimated  by  the  said  court;  but 
nothing-  herein  contained  shall  be  construed  to  deprive  the 
l)arty  injured  from  having  and  maintaining  a  civil  action 
against  such  offender,  either  before  or  after  conviction,  or 
against  any  other  person,  for  the  recovery  of  the  moneA^ 
received  or  property  taken,  or  the  value  thereof.^ 

If  any  person  who  has  removed  his  trial  shall  be  convicted 
of  any  ofiense  punishable  by  fine  or  imprisonment,  the 
court  shall,  if  the  sentence  be  imi)risonment,  sentence  him 
to  confinement  in  the  jail  of  the  county  or  city  from  which 
such  removal  took  place;  and  it  shall  be  the  duty  of  the 
sheriff  of  the  county  or  city  where  such  conviction  may  be 
had^  to  place  the  person  convicted  in  the  custody  of  the 
sheriff  of  the  county  or  cit^'  in  which  the  indictment  was 
found,  together  with  a  certified  copy  of  the  docket  entries 
in  the  case." 

§  124. — Convict  Infants. — When  any  infant  under  the 
age  of  fifteen  years  shall  be  convicted  of  any  offense  other 
than  those  mentioned  in  the  succeeding  section,  the  court 
may  susi)end  the  sentence  upon  such  convicted  infant  and 
bind  him  or  her  to  some  person  residing  in  or  out  of  this 
State,  or  may  [uocure  other  emi)loyment  for  such  infant, 
in  or  out  of  this  State,  and  shall  have  [lower  to  compel 
such  infant  to  comply  with  the  terms  of  its  judgment;  but 
such  infant  shall  not  be  bound  to  service  in  the  county  or 
city  where  the  conviction  was  had,  nor  for  a  term  exceed- 
ing beyond  the  age  of  eighteen  years  in  females  and 
twenty-one  in  males.^ 

AH  infants  over  twelve  and  under  the  age  of  fifteen 
years,  who  may  l)e  convicted  of  mayhem,  murder  in  the 
second  degree,  manslaughter,  assault  with  intent  to  com- 


'Code,  art.  27,  sec.  303.  See,  also,  lb.,  I  83;  Isaacs  v-  State,  23  Md- 
410. 

^b.,  sec.  304. 
Mb.,  sec.  295. 


THE   VERDICT    AND   SUBSEC^UENT    TTJOfKKDINGS.       ll'l 

mit  innrdcr  or  inayliom,  or  of  settiiif;'  fir<'  to  aii.v  building, 
teiKMiifut  or  property,  the  settin<>"  tii-e  to  which  is  piinisli- 
able  by  contiiicnieiit  in  the  I'eiiitciitiary  in  the  case  of 
adults,  shall  be  sentenced  to  the  I'enitentiary  for  the  said 
crime  in  the  same  manner  as  if  they  were  of  fall  a<;e,  or, 
in  the  discretion  of  the  court,  may  be  confined  in  the 
Honse  of  Kefn<i;e,  or  St.  ]Mary'.s Industrial  School,  or  House 
of  Jieformation  [and  Instruction  for  Colored  Children.]' 

Any  court  in  this  State  havinji' criminal  jurisdiction  may 
bind  out  to  the  nianaf^ers  of  any  honse  of  refnfie  or  other 
institution  under  police  rej>idations,  within  the  limits  of  said 
State,  all  infants  over  twelve  and  under  the  age  of  fifteen 
years,  until  they  shall  arrive  at  an  age  of  not  less  than 
eighteen  nor  more  than  twenty-one  years,  who  shall  be 
convicted  of  any  offense  punishable  in  adults  by  confine- 
ment in  the  Penitentiary,  other  than  those  specified  in  tlie 
preceding  section. - 

It  shall  be  the  duty  of  every  court  having  criminal 
jurisdiction  to  examine  into  the  character  of  all  infants 
convicted  of  offenses  for  which  they  may  be  bound  as 
api)rentices  under  the  preceding  section  and  to  exercise  a 
sound  discretion  in  determining  whether  the  infant  so 
convicted  should  be  bound  out  in  accordance  with  existing 
laws,  or  should  be  sentenced  to  the  Penitentiary,  in  the 
same  manner  with  adults  convicted  of  like  crimes,  and  to 
bind  out  or  sentence  such  infants  accordingly.'' 

Whenever  any  colored  minor  under  the  age  of  sixteen 
years  shall  be  convicted  before  any  court  or  justice  of  the 
peace  of  any  felony  or  other  offense  against  any  law  or  laws 
of  this  State,  the  judge  of  said  court  (»r  said  justice,  in  his 
discretion  and  with  reference  to  the  character  of  sai<l 
institution  as  a  place  ol  reform,  and  not  of  i)unishment, 
may  order  said  minor  so  convicted  to  be  removed  to  and 
confined  in  the  House  of  Keformation  [and  Instruction]; 
jirovided.  that,  in  all  cases,  no  transfer  of  any  such  minor 
shall  be  made  until  due  notice  has  been  given  to  the  supei- 
intendent  of  said  House  of  Ketbrmation,  an«l  an    answer 

'Code,  ait.  '27,  sec.  2W. 
-lb.,  sec  297. 
•nb.,  sec.  298. 


122  CRIMINAL   LAW. 

received  Iroiii  bini,  tliat  there  is  room  for  tlie  reception  of 
such  delinquent.* 

Whenever  any  white  male  minor  under  the  age  of  sixteen 
years  shall  be  convicted  of  felony  in  any  court  of  this 
State,  the  judge  of  said  court,  in  his  discretion  and  with 
reference  to  the  character  of  the  House  of  Eefuge  as  a 
place  of  reform,  and  not  of  punishment,  may  order  said 
minor  so  convicted  to  be  removed  to  and  confined  in  the 
said  House  of  Refuge;  provided,  that,  in  all  cases,  no  such 
transfer  of  any  such  minor  from  the  counties  shall  be  made, 
until  due  notice  has  been  given  to  the  superintendent  of 
said  House  of  Refuge,  and  an  answer  received  from  him, 
that  there  is  room  in  the  House  of  Refuge  for  the  reception 
of  such  delinquent.^ 

Whenever  any  colored  female  under  the  age  of  eighteen 
years  shall  be  convicted  in  any  of  the  courts  of  this  State 
of  any  oti'ense,  or  of  vagrancy,  the  judge  of  said  court,  in 
his  discretion  and  with  reference  to  the  character  of  the 
Industrial  Home  for  Colored  Girls  as  a  ])lace  of  reform, 
and  not  of  punishment,  may  order  the  minor  so  convicted 
to  be  removed  to  and  coutined  in  the  said  Industrial  Home 
for  Colored  Girls. ^ 

§  125. — Sentence  to  Maryland  House  of  Correction. 
— Whenever  any  person  n)ay  be  convicted  in  any  of  the 
courts  of  this  State  for  any  crime  or  misdemeanor,  who  is 
liable,  under  existing  law,  to  be  sentenced  to  imprisonment 
for  a  period  not  less  than  two  months  and  not  exceeding 
one  year,  such  court  may,  in  its  discretion,  sentence  such 
person  to  be  contiued  in  said  House  of  Correction,  instead 
of  other  place  of  continement.* 

Wlien  any  person  shall  be  convicted  of  larceny  in  any 
court  of  this  State,  and  such  court  shall  be  of  the  opinion, 
that  the  interests  of  public  justice  will  be  best  jn-omoted 
by  sentencing  the  person  so  convicted  to  the  Maryland 
House  of  Correction  instead  of  the  Penitentiary,  it  shall 
have  the  power  to  sentence  such  person  to  be  confined  in 


'  Code,  art.  27,  sec.  349. 
Mb.,  sec.  370. 
•'  lb.,  sec.  379. 
••lb.,  sec.  310. 


.  THE   VERDICT   AND   SUBSEQUENT   PROCEEDINCrS.      123 

the  Mai  viand  House  of  Correction  instead  of  the  Maryland 
Penitentiary;  i)rovided,  that  the  said  term  of  confinement 
in  the  said  Maryland  House  of  Correction  shall  not  l>e  lor 
a  less  period  than  may  now  or  hereafter  be  lawfully  imposed 
for  the  ofl'ense  of  which  such  person  was  so  convicted,  and 
that  such  person  so  sentenced  to  confinement  in  said  Mary- 
land House  of  Correction  be  not  sentenced  to  be  confined 
therein  for  a  longer  period  than  three  years. ^ 

Any  i)crson,  not  insane,  who  is  convicted  of  beiug  a 
tramp  shall  be  sentenced  by  the  justice  of  the  peace,  or  by 
the  court,  as  the  case  may  be,  before  whom  such  offender 
is  tried  to  confinement  in  the  Maryland  House  of  Correction 
for  a  period  of  not  less  than  two  months  nor  more  than  one 
year.- 

When  an3'  ]>erson  is  convicted  in  any  court  of  this  State 
of  assault  and  battery,  riot,  or  any  other  misdemeanor 
l^unishable,  under  the  laws  of  this  State,  by  imprisonment 
in  jail  or  by  fine  and  imprisonment  in  jail,  such  court  shall 
have  power  to  sentence  such  person  to  be  confined  in  the 
Maryland  House  of  Correction;  provided,  that  the  said 
term  of  confinement  in  the  said  Maryland  House  of  Cor- 
rection shall  not  be  for  a  less  period  than  two  months.^ 


»Code,  art.  27,  sec  311. 
-lb.,  sec.  312. 
'lb.,  sec.  313. 


CHAPTEJi   XL 

Fi>'ES,  Costs  and  Miscellaneous  Matteks. 

§  126. — Fines. — Mode  of  Recovering. — When  any  fine 
or  i)enalty  is  imposed  by  any  act  of  Assembly  of  this  State, 
or  by  any  ordinance  of  any  incorporated  city  or  town  of 
tliis  State,  enacted  in  pursuance  of  sufficient  autliority,  for 
tlie  doing  of  any  act  forbidden  to  be  done  by  such  act  of 
Assembly  or  ordinance,  or  for  omitting  to  do  any  act  re- 
quired to  be  done  by  sucli  act  of  Assembly  or  ordinance, 
the  doing  of  such  act  or  the  omission  to  do  such  act  shall 
be  deemed  to  be  a  criminal  offense.  Such  offense,  in  the 
City  of  Baltimore,  shall  be  prosecuted  by  the  arrest  of  the 
offender  for  such  offense,  and  by  holding  him  to  appear  in 
or  committing  him  for  trial  in  the  Criminal  Court  of  Balti- 
more, at  the  Saturday  sessions  of  said  Court,  which  Court 
shall  have  jurisdiction  in  the  said  cases,  and  shall  proceed 
to  try  or  dispose  of  the  same  in  the  same  manner  as  other 
criminal  cases  triable  at  the  Saturday  sessions  of  said 
Court  may  be  tried  or  proceeded  with  or  disi>osed  of:  or, 
such  offense  may  be  prosecuted  by  indictment  in  such  court. 
Such  offenses,  in  any  county  of  this  State,  shall  be  prose- 
cuted by  the  arrest  of  the  offender  for  such  offense,  and  by 
holding  him  to  bail  to  appear  in  or  committing  him  for  trial 
in  the  Circuit  Court  for  the  county  in  which  such  offense 
was  committed,  or  by  indictment  in  the  Circuit  Court  for 
such  county  for  such  offense.  If  any  person  shall  be  ad- 
judged guilty  of  any  such  offense  by  any  court  having' 
jurisdiction  in  the  premises,  he  shall  be  sentenced  to  the 
fine  or  penalty  prescribed  by  such  act  of  Assembly  or  ordi- 
nance and  to  the  costs  of  his  prosecution,  and,  in  default 
of  payment  thereof,  he  shall  be  committed  to  jail  until 
thence  discharged  by  due  course  of  law.  Any  indict- 
ment for  the  violation  of  any  ordinance  of  any  incorpor- 
ated city  or  town  of  this  State  may  conclude,  "against  the 
form  of  the  ordinance  in  such  case  made  and  provided, 


FINKS,    COSTS    AjND    .MlSCKLLANKTirs    MM'-JEltS.  125 

and  aj^aiiist    the   i>eace,   goveniiueiit  and  dignity  oT  the 
State."' 

§  127.— Same  Subject— To  Whom  Paid.— All  lines, 
IKMialtics  and  loi  Icitiires.  when  recovered,  shall  he  paid  to 
the  county  or  city  where  the  .same  n)ay  he  imposed,  unless 
directed  to  be  ]taid  otherwise  by  the  law  imposing  them; 
but,  it  theie  be  an  informer,  he  shall  have  halt,  uidess 
otherwise  provided — this  section  not  to  ai)[)ly  to  tines  or 
lorleitures   tor  olfenses  at  common  law.- 

§  128. — Same  Subject — Discharge  from  Jail.  —  Any 
person  who  shall  or  may  hereafter  be  committed  to  jail,  by 
the  judgment  of  any  court  of  justice,  or  by  any  justice  of 
the  peace  of  this  State,  for  non-payment  of  any  fine  and 
costs,  not  exceeding  the  sutu  of  tlfty  dollars,  wlio  shall  have 
remained  in  custody  as  aforesaid  for  the  space  of  thirty 
days;  or  any  person  who  shall  or  may  hereafter  be  com- 
mitted to  jail  aforesaid  for  non-i)ayment  of  any  tine  and 
costs,  above  lifty  and  not  exceeding  one  hundred  and  titty 
dollars,  who  shall  have  remained  in  custody  aforesaid  for 
the  space  of  sixty  days,  shall  be  discharged  Irom  further 
imprisonment  on  account  of  said  fine  and  costs;  j)rovided, 
such  person  sliall  prove,  to  the  satisfaction  of  tlie  court 
imposing  said  tine  and  costs,  or  any  judge  thereof,  or  jus- 
tice ot  the  ]>eace,  as  the  case  may  be,  that  he  is  unable  to 
pay  said  tine  and  costs.^ 

§  129. — Costs. — No  person  who  may  be  prosecuted  lor 
any  misdemeanor  or  offense  and  discharged  by  the  court 
on  submission,  or  lined  not  exceeding  tifteeu  cents,  or 
prosecuted  for  any  crime  and  acrpiitted  on  trial  by  jury, 
shall  be  burdened  with  the  payment  of  any  costs  or  fees 
accruing  on  such  prosecution,  but  all  such  costs  and  fees, 
with  the  legal  costs  of  the  party  accused,  shall  be  paid  by 
the  county;  and  no  persou  taken  upon  any  warrant  or 
capias  on  presentment,  where  no  bill  of  indictment  is  found, 
shall  be  liable  to  pay  or  give  security  for  costs,  but  such 
costs  shall  be  j»aid  by  the  county.  The  Mayor  and  City 
Council  of  Baltimore  shall  not,  however,  be  liable,  iu  any 


'Code,  art.  38,  sec.  1;  Suowden  v.  State,  69  Md. 
-  Code,  art.  38,  sec.  2. 
nb..  sec.  3. 


126  CRIMINAL   LA.W. 

such  cases  tried  in  the  Criminal  Court  of  Baltimore,  for  the 
appearance  fees  allowed  by  law  to  the  attorney  of  the 
traverser/ 

§  130. — Commitments. — Warrants  of  commitment  must 
be  under  seal.- 

A  commitment  in  execution  of  a  sentence  of  a  court  of 
competent  jurisdiction,  or  upon  a  summary  judgment  for 
contempt,  cannot  be  assailed  collaterally,  as  upon  a  return 
to  the  writ  of  habeas  corpus;''  and,  even  in  the  case  of  in- 
ferior magistrates,  the  presumi)tion  is,  that,  there  has  been 
a  good  conviction  and  that  the  magistrate  has  done  every- 
thing required  by  law.*  But,  when  a  prisoner  is  brought 
up  by  habeas  corpus^  even  though  he  have  been  committed 
after  sentence  of  a  court  or  conviction  by  a  magistrate,  he 
may  controvert  the  return,  and  in  case  of  a  conviction  by 
a  magistrate  (so  recited  in  the  commitment),  he  may  show 
that  there  has  been  no  conviction  in  fact,  or  that  it  is 
simply  void  for  want  of  jurisdiction  in  the  magistrate  to 
make  it." 

§  131. — Custody  of  Prisoners. — Xo  citizen  of  this  State, 
committed  to  the  custody  of  an  officer  for  any  criminal 
matter  shall  be  removed  from  thence  into  the  custody  of 
another  officer,  unless  it  be  by  habeas  corpus  or  by  other 
legal  writ,  except  where  the  prisoner  shall  be  delivered  to 
a  constable  or  other  inferior  officer,  to  be  carried  to  some 


»Code,  art.  24,  sec.  7. 

As  to  costs  in  removed  canes,  see  lb.,  sees.  1-G;  Mayor  v.  County 
Commissioners,  19  Md.  554;  County  Commissioners  Howard  v. 
County  Commissioners  Frederick,  30  lb.  432;  County  Commission- 
ers Allegany  v.  Couuty  Commissioners  Howard,  57  lb.  893. 

Costs  in  Baltimore  Citj',  in  certain  cases,  are  payable  by  the  person 
who  instigates  the  prosecution.     Code  P.  L.  L  .  art  4.  sees.  196,  199. 

In  certain  classes  of  cases  in  said  City  only  half  the  ordinary 
charges  are  to  be  taxed      lb.,  sec.  188. 

The  estate  of  Penitentiary  convicts  is  liable  to  costs  and  charges. 
Code,  art.  27,  sec.  302;  ante,  \  123. 

2  Somervell  v.  Hunt,  3  H   &  McH.  113. 

=*  Exp.  Maulsby,  13  Md.  625:  In  re  Morris,  39  Kans.  28. 

■^ State  V.  Glenn,  54  Md.  572   609. 

Mb.  Cf.  Divine's  Case,  11  Abb.  Pr.  R.  90:  In  re  Golding,  57  N.  H. 
146:  In  re  Davis.  38  Kans.  408;  Sennott's  Case.  146  Mass.  489:  In  re 
"Wooldridge,  30  Mo.  App.  C12. 


FINES,    COSTS    AND    MISCELLANKOl'S    3IATTERS.         127 

coninioii  jail,  orslia!)  IxMemoved  Irom  one  place  to  anotlier, 
within  tlie  said  county  or  an  adjoining  county,  in  order  to 
his  discharge  or  trial,  in  due  course  of  law;  or  in  case  of 
sudden  tire  or  infection  or  other  necessity;  or  where  the 
prisoner  shall  be  charged,  by  allidavit  or  other  lawful  evi- 
dence, with  tieason,  felony  or  other  crime,  alleged  to  be 
done  in  any  other  of  the  United  States  of  America  or  ter- 
ritories thereof,  in  which  last  case  he  shall,  on  demand  of 
the  executive  authority  of  the  state,  district  or  territory 
from  which  he  tied,  be  immediately  delivered  up." 

In  ICngland,  prisoners  were  removed  from  one  place  of 
impiisonment  to  another  by  writ  of  huben.s  corpus  ad  snb- 
jicietidnm,  issued  at  the  instance  of  the  crown.  Under  the 
above  statute,  the  necessity  of  a  writ  for  removal  of  a  pris- 
oner from  one  county  to  another  adjoining  is  dispensed 
Avith,  and  no  mode  is  i)rescribed,  leaving  it  to  the  officers 
of  the  law  to  a<lopt  such  other  evidence  of  the  legality  of 
the  ariest  as  existed  in  the  case,  which,  in  most  instances, 
is  a  copy  of  the  original  comniitment  with  the  endorsements 
thereon.  Hence,  a  [)risoner  committed  on  a  legal  warrant 
in  one  county  in  this  State  may  be  removed  to  an  adjoining 
county  by  the  sheriff  thereof  without  writ,  or  other  special 
authority  in  writing,  from  a  judicial  ofHcer.- 

§  I'.VJ. — Stet. — Nolle  Prosequi. — Stct processus isan entry 
on  the  recoid,  in  the  nature  of  a  judgment,  of  a  direction 
that  all  further  proceedings  may  be  stayed  (i.  e.,  that  the 
process  may  stand),  and  it  is  one  of  the  ways  in  which  a 
prosecution  may  be  put  an  end  to  by  the  |)rosecuting  attor- 
ney, as  distinguished  from  a  determination  of  it  by  a  judg- 
ment, which  is  the  act  of  the  court. 

A  uolle  prosequi  is  a  declaration  of  record,  from  the  [)rose- 
cuting  attorney,  that  he  will  no  further  i)rosecute  the  j)ar- 
ticular  indictment  or  sonie  designated  i)art  Thereof.^ 

The  power  of  entering  a  )iolle  prosequi  is  exercised  at  the 
discretnui  of  the  attorney  who  prosecutes  for  the  State,  and 
for  its  exercise  he  ahuie  is  res])onsible.' 


'Code,  art.  42.  sec  16. 
-Blake  r.  Burke,  42  Md.  -15. 
^  1  Bishop  Cr.  Proc.  «  13S7. 
•• .")  Cr.  L.  Mag.  1 . 


IL'S  CRIMINAL   LAW. 

Where  a  sfet  has  been  entered  in  a  criminal  case,  the 
party  remains  liable  to  l)e  proceeded  against  under  the 
same  indictment;'  and  where  a  nolle  lyroaequi  has  been  en- 
tered, the  accused  remains  subject  to  be  proceeded  against 
by  another  indictment  tor  the  same  ofltense.- 

A  nolle  prosequi  may  likewise  be  granted  by  the  Governor, 
but  only  on  condition  that  the  costs  of  prosecution  shall 
be  paid  by  the  person  applying  for  the  same.^ 

§  133. — Pardons  and  other  Matters  Pertaining  to 
Office  of  Governor. — He  shall  have  power  to  grant  re- 
])rieves  and  pardons,  excei)t  in  cases  of  impeachment  and 
in  cases  in  which  he  is  i)rohibited  by  other  articles  of  the 
Constitution,  and  to  remit  fines  and  forfeitures  for  offenses 
against  the  State,  but  shall  not  remit  the  i)rincipal  or  in- 
terest of  any  debt  due  the  State,  except  in  cases  of  lines 
and  forfeitures;  and  before  granting  a  woZ/e /^rosegia  or  par- 
don, he  shall  give  notice,  in  one  or  more  newspai)ei's,  of  the 
api)lication  made  for  it  and  of  the  day  on,  or  after  which, 
his  decision  will  be  given;  and,  in  every  case  in  which  he 
exercises  this  power,  he  shall  report,  to  either  branch  of 
the  Legislature,  whenever  required,  the  petitions,  recom- 
mendations and  reasons  which  intiuenced  his  decision.* 

The  Governor  is  authorized  and  required,  wheneNcr  sen- 
tence of  death  is  pronounced  on  any  criminal  by  the  judg- 
ment of  a  court  of  this  State,  to  issue  a  warrant  to  the 
sheriff  of  the  county  or  city  who  ought  by  law  to  execute 
such  judgment,  ordering  and  din^cting  the  sheriff  to  exe- 
cute said  judgment  at  such  time  as  in  his  warrant  he  sluill 
apj)oint.^ 

The  Governor,  upon  giving  the  notice  required  by  the 
Constitution,  may  commute  or  change  any  sentence  ol' death 
into  continement  in  the  Penitentiary  or  banishment,  for 
such  period  as  he  shall  think  expedient,  and,  on  giving 
such  notice,  he  may  pardon  any  person  convicted  of  crime 
on  such  conditions  as  he  njay  prescribe,  or  he  may,  upon 
like  notice,  remit  any  part  of  the  time  for  which  any  i)erson 


'  State  V.  Morgan,  33  Md.  44. 
2 lb.;  1  Bishop  Cr.  Proc,  '''/.  1395. 
'Code,  art.  41,  sec.  10. 
■•  Const.,  art.  2,  sec.  20. 
*  Code,  art.  41,  sec.  5. 


FINES,    COSTS   AND   MISCELLANEOUS    MATTERS.         12!> 

may  be  sentenced  to  confinement  in  tlie  Penitentiary  on 
sMcli  like  conditions,  without  such  icinission  ojjeiating  as 
a  lull  i)ai<lon,  to  any  sncli  pcison.' 

It' any  pcison  pardoned  on  condition  of  leaving  the  State 
shall  return  contrary  thereto,  such  j)erson  may  i)e  arrested 
by  warrant  iVom  any  judge  or  Justice  of  the  i)eace;  and,  if 
on  examination,  it  shall  appear  to  such  Judge  or  justice 
that  there  is  jcasonable  ground  to  believe  that  the  person 
arrested  is  the  same  ])erson  who  was  convicted  and  par- 
doned, an<l  that  he  returned,  contrary  to  the  terms  of  such 
l)ardon,  he  shall  be  coinmitted  to  the  Jail  of  the  county  or 
city  where  arrested,  and  the  sheriff  shall  bring  him  before 
the  tirst  Circuit  Court  for  the  county,  or,  if  in  Baltimore 
City,  before  the  first  Criminal  Court  of  Baltimore,  which 
shall  happen  thereafter;  and  if,  on  appearing,  such  person 
shall  acknowledge  himself  to  be  the  same  person  jjardoned 
on  condition  of  leaving  the  State,  and  that  he  returned 
contrary  thereto,  the  court  shall  record  such  confession  and 
l)roceed  to  [)ass  Judgment  according  to  law;  and,  if  the 
person  shall  deny  that  he  is  the  same  person  convicted  and 
])ardoned  as  aforesaid,  or  that  he  returned  contrary  thereto, 
the  court  shall  direct  the  fact  to  be  tried  by  the  Jury;  and. 
if  they  find  against  the  person,  the  court  shall  pass  such 
Judgment  as  the  law  requires  for  the  crime  committed.-' 

The  Governor  may  remit  the  whole  or  any  part  of  any 
recognizance  which  may  be  forfeited;  provided,  the  Judge 
of  the  court  in  which  such  forfeiture  took  i)lace  shall  recom- 
mend the  remission  of  the  whole  or  some  part  thereof.' 

The  part  of  any  fine  or  forfeiture  belonging  to  an  inlbrmer 
shall  not  be  remitted  by  the  Governor;  but  he  may  remit 
any  fine  or  forleiture,  or  any  part  thereof,  not  belonging  to 
an  informer.' 


'  Code,  art.  41,  sec.  6. 

*Ib.,  sec.  7.     See  People  v.  Moore.  (i2  Mich.  496. 

nh.,  sec.  8. 

Mb.,  sec.  9.   • 


y 


CHAPTEE  XII. 
Writs  of  Ereor  and  appeals. 

§  134. — Writs  of  Error. — A  defendant  against  whom  a 
jiidjiiueut  lias  been  rendered  in  a  criminal  case  is,  ex  clebito 
justitiae,  entitled  to  prosecute  a  writ  of  error.^  The  writ 
likewise  lies  at  the  instance  of  tlie  State."  In  order  for  the 
writ  to  lie,  there  must  have  been  a  final  disposition  of  the 
case  in  the  court  of  first  resort.^  An  order  removing  or  re- 
fusing to  remove  a  cavse,  civil  or  criminal,  to  another  court 
for  trial  finally  adjudicates  a  constitutional  right  of  the 
party  affected  thereby,  and  it  is  regarded  as  a  judgment 
from  which,  according  to  the  nature  of  the  case,  an  appeal 
or  writ  or  error  may  be  immediately  prosecuted."  It  is  a 
general  rule,  that  a  writ  of  error  at  law  lies  only  to  correct 
errors  in  matters  of  law  apparent  upon  the  face  of  therecord^ 
and  such  as  might  have  foruied  sufficient  ground,  at  the 
proper  time,  for  a  motion  in  arrest  of  judgment.'* 

A  writ  of  error,  after  final  judgment,  subject  to  the  limi- 
tations above  noted,  brings  up  for  review  by  the  ap})ellate 
tribunal  the  entire  proceedings  in  the  inferior  court.^ 
Whatever  assumes  the  solemnity  of  a  judgment  of  a  court 
of  recoid  is  i)art  and  j)arcel  of  the  record  and  examinable  in 
the  api)ellate  tribunal  on  a  writ  of  error;  and,  whilst  the 
appellate  court  cannot  find  the  facts,  yet  the  judgment  of 
the  inferior  court  on  those  facts  is  a  matter  of  law,  and, 
where  ihe  facts  are  found  by  the  court  or  jury  below,  it  is 
the  proper  and  legitimate  province  of  the  appellate  court  to 


«  Anderson  v.  State,  5  H.  &  J.  174;  Manly  r.  State,  7  Md.  135. 

2  State  i:  Buchanan,  5  H.  &  J.  317. 

^ State  V.  Flannigan,  6  Md.  167;  State  v.  Boyle,  25  lb.  509;  Clare  r. 
State,  30  lb.  163;  League  v.  State,  36  lb.  257;  For  wood  v.  State,  49 
lb.  531;  State  v.  Wade,  55  lb.  39;  State  v.  Hodges,  lb.  127;  State  r. 
McNally,  lb.  559. 

*  McMillan  v.  State,  68  Md.  307. 

'"  Munshower  r.  State,  56  Md.  514:  Green  v.  State.  59  lb.  123. 

'^  Clare  v.  State,  supra. 


WRITS    OF    KKUOR    AND    APPEALS.  LJl 

see  tliat  tlu^  inteiioi'  (•ourt  has  pionomifed  correctly  the  Itiw 
as  ai)i)lical>I('  to  the  I'acts.' 

A  writ  of  error  docs  not  sta>  c.rccntioii  in  <  i  iniinal  cases. - 

§  ];i,"), — No  Formal  Writs  of  Error. — Formal  writs  of 
error  shall,  in  all  cases,  i)e  (lisi)cnsc(l  with,  and  the  party 
applying;-  to  have  the  record  removed,  as  upon  writ  of  error, 
in  cases  where  by  law  writs  of  error  are  allowable,  shall,  by 
brief  petition,  addressed  to  the  court  in  which  the  case  was 
tried,  plainly  <lesij;nate  the  points  or  (picstions  of  law  by 
Ihe  decision  of  which  he  feels  ag.«>ricvcd,  which  apjdication, 
so  to  remove  the  record,  shall  be  allowed  as  of  right,  and 
uo  point  or  question  not  thus  plainly  designated  in  such  ap- 
plication shall  be  heard  or  determined  by  the  Court  of  Ap- 
peals.^ 

§  I'M). — Appeals  upon  Prosecutions  for  Fines  or  Pen- 
alties.— Fron»  any  judgment  or  determination  of  any  court 
of  law  in  any  civil  suit  or  action,  or  in  any  j)rosecution  for 
the  recovei-y  of  any  penalty,  tine  or  damages,  any  party 
may  appeal  to  the  Court  of  Appeals.^ 

The  ettect  of  the  above  statute  is,  in  the  class  of  cases 
designated,  to  give  a  remedy  by  appeal  instead  of  by  writ 
of  error.'  Whenever  the  punishment,  in  a  criminal  case, 
consists  of  a  tine  or  penalty,  an  appeal  will  lie  upon  ques- 
tions of  law  apparent  on  the  record;  and  such  questions 
surticiently  appear  on  the  record,  where  the  defense  is  pre- 
sented in  the  court  below  by  an  af/reed  statement  of  fads." 

§  137. — Appeals  from  Rulings  at  the  Trial. — In  all 
trials  upon  indictment  or  presentment  in  any  court  of  this 
State  having  criminal  Jurisdiction,  it  shall  be  lawful  ior 
the  party  accused,  or  the  State's  attorney,  in  behalf  of  the 
State,  to  except  to  any  ruling  or  determination  of  the  court. 

'Ford  r.  State,  12  Md.  oU:  Clare  i:  State,  30  lb.  1(53;  Johns  r. 
State.  ").-)  lb.  3r)0:  Byevs  r.  State,  6:5  lb.  2G7. 

-Hugueiiiu  I'.  Baseley,  1")  Ves.  Jr.  ISO;  Anderson  r.  State,  3  H.  & 
J.  174. 

^Code,  art.  •■).  sec.  4;  State  r.  Williams,  5  Md.  82;  Davis  c.  State. 
.Sy  lb.  355.  3!^6;  Hearu  r.  Gould,  51  lb.  319;  State  r.  Soarboroup^h. 
55  lb.  345;  State  i:  McNally.  lb.  559:  Ilaitinan  /•.  State.  CO  lb.  XIV. 

••Code,  art.  5,  seo.  2. 

*  Queen  r.  State,  5  H.  &  J.  232;  Rawlings  r.  State.  1  Md.  127. 

"Keller  r.  State,  12  Md.  322. 


i;32  CRIMINAL   LA\^^ 

and  to  tender  to  the  court  a  bill  of  exceptions,  which  shall 
be  signed  and  sealed  by  the  court,  as  is  now  practised  in 
civil  cases;  and  the  party  tendering  such  bill  of  exceptions 
may  appeal  from  such  ruling  or  determination  to  the  Court 
of  Appeals;  provided  that  the  counsel  for  the  accused  shall 
xuake  oath,  that  such  appeal  is  not  taken  lor  delay;  and 
such  appeal  shall  be  heard  by  the  Court  of  Appeals  at  the 
earliest  convenient  day  after  the  same  shall  be  transn)itted 
to  said  Court;  and,  after  such  appeal  shall  be  entered,  no 
judgment  shall  be  rendered  against  the  accused,  in  case  he 
be  found  guilty,  until  the  Court  of  Appeals  shall  have  de- 
termined upon  the  exception;  and  the  accused,  if  convicted, 
shall  not  be  entitled  to  remain  on  bail  until  the  case  is 
reujanded  from  the  Court  of  Appeals,  except  in  cases  in 
which  the  punishment  is  fine  or  confinement  in  Jail,  or  con- 
finement in  Jail  or  Penitentiary,  in  the  discretion  of  the 
court.  ^ 

The  right  of  appeal  under  the  above  ])rovision  is  confined 
exclusively  to  cases  where  exceptions  are  taken-  at  the 
trial/  The  right  to  except  to  rulings  of  the  court  in  crimi- 
nal cases  rests  solely  upon  the  provisions  above  quoted,  the 
statute  of  Westminster  having  rei'erence  only  to  civil  cases/ 
They  must  be  sealed,^  as  well  as  signe<l,  and  this  must  be 
done  before  judgment  and  as  soon  after  the  verdict  as  is 
reasonably  possible." 

A  bill  of  ex(;eptions  is  a  statement  of  facts  which  do  not 
properly  make  part  of  the  record;  it  must  rest  upon  mat- 


'  Code,  art.  5,  sec.  77. 

-Kearuey  v.  State,  46  Md.  422;  Johns  r.  State,  0.5  lb.  350:  Latnb  v. 
State,  66  lb.  285. 

=' Smith  V.  State,  44  Md.  530:  Dulany  r.  State,  45  lb.  99:  Pickett  '•. 
State,  58  lb.  XIII. 

^  Queen  r.  State.  5  H.  &  J.  232. 

By  an  old  act  of  Assembly,  establishing  Assize  Courts^  it  was 
formerly  provided,  that,  in  criminal  cases,  where  the  party  accused 
desired  it,  the  justices  should  sign  and  allow  bills  of  exceptions,  in 
the  same  manner  as  they  were  usually  allowed  in  civil  cases.  Pro- 
prietary /•.  King,  1  H.  &  McH.  8:3. 

*Rhinehart  v.  State,  45  Md.  454. 

"Grouse  v.  State,  57  Md.  327. 

As  to  the  manner  in  which  bills  of  exceptions  are  to  be  prepared, 
see  Code,  art.  5,  sec.  10:  Davis  r.  State,  38  Md.  15,  51. 


AVIJITS    OF    KKHOR    AM)    APPEALS.  13.*^ 

ters  which  «1<)  not  otheiwisc  fippear  ii[)on  the  recor<l.  It 
does  not  lie  Ironi  riilinj>s  which  are  reviewable  npon  writ  of 
error,  such  as  rulings  upon  denuirrers.'  Before  a  riilin*;" 
exceptcid  to  can  be  reversed,  it  must  appear  that  the  app(;l- 
lant  lias  been  injunMl;  hen(;e,  wiiere  a  (juestion  allowcMl  to 
be  i)ut  to  a  witness  is  e.\(;epte(l  to,  the  answer  must  be  set 
foith,  in  order  to  show  that  it  was  prejudicial.-  The  pre- 
sumption always  is,  until  the  contrary  be  made  to  appear, 
that  all  things  have  been  rightly  and  properly  <lone  by  a 
court  of  com])etent  jurisdiction.' 

Belbrc^  the  defendant's  ap|)eal  can  be  heard,  it  must  aj)- 
jjear  that  therefpurcd  oath  has  been  taken  by  the  counsel 
for  the  accused.'  If  an  ai)peal  is  presented  on  behalf  of  the 
State,  it  must  appear  that  it  was  taken  by  the  State's  at- 
torney.* After  the  defendant  lias  been  acquitted,  how- 
ever, an  api)eal  by  the  State  can  not  be  entertained." 

Both  appeals  and  writs  of  error,  in  criminal  cases,  must 
be  prosecuted  irifltoKt  drbti/.' 

§  138. — Reversal  and  its  Consequences. — Where  there 
is  a  defect  in  the  proceedings  that  is  merely  formal,  and  it 
does  not  appear  that  injury  has  been  done  to  the  accused, 
judgment  Mill  not  be  reversed.* 

When  judgment  or  rulings  are  reversed  on  api)eal  or  writ 
of  error,  a  neic  trial,  to  be  had  in  the  lower  court,  is  awarded 
by  the  Court  of  Appeals.  But,  if  the  reversal  be  in  con- 
sequence of  a  defect  which  goes  to  the  right  of  the  State  to 
maintain  the  prosecution,  in  other  words,  where  no  new 
proceedinf/.s   against   the    defendant   can  properly  be  had 


'  Kearney  r.  State.  46  Md.  422;  Foiwood  i:  State,  4'J  lb.  531 ;  Baito. 
&  Yorktown  Turnpike  Road  r.  State.  63  lb.  558. 

-  Balto.  &  Yorktown  Turnpike  Road  (".  State,  supra:  Lawson  r. 
Price,  45  Md.  123,  133. 

^Dorbert  r.  State.  6S  Md.  209. 

'  Weir  '•.  State.  39  Md.  434;  Rliiuehart  /'.  State,  45  lb.  454:  Neff  c 
State,  57  lb.  385. 

■State  r.  Carter,  49  Md.  8. 

"State  /••  Shields.  49  .Md.  301. 

"State  V.  Bowers.  65  Md.  363;  State  r.  hong.  lb.  365;  Clark  r. 
State,  68  lb.  181. 

^R:j\vlings  r.  State.  2  Md.  'JUI.JIC);  Wedge  r.  State,  12  lb.  232: 
Hammond  c.  State.  14  lb.  135:  Isaacs  r.  State.  23  Tb.  410:  llnys  r. 
State,  40  lb.  633. 


lo4  CRIMINAL   LAW. 

theieaftej'.  the  jiulgmeiit  or  proceedings  are  simply  reversed, 
without  auythiug  more/ 

Whenever  any  writ  of  error  or  appeal  shall  be  brougiit 
upon  any  judgment,  or  any  indictment,  information,  pre- 
sentment, inquisition  or  conviction  in  any  criminal  case, 
and  the  Court  of  Appeals  shall  reverse  the  judgment  for 
error  in  the  judgment  or  sentence  itself,  it  shall  be  the  duty 
of  the  Court  of  A^ppeals  to  remit  the  record  to  the  court 
below,  in  order  that  such  court  may  pronounce  the  i)roper 
judgment  upon  such  indictment,  information,  presentment, 
inquisition  or  conviction;  provided,  however,  that  it  shall 
be  the  duty  of  the  court  in  passing  any  sentence  under  the 
provisions  of  tliis  section  to  deduct  from  the  term  of 
sentence  the  time  already  served  by  the  prisoner  under  the 
previous  sentence  iroin  the  date  of  his  conviction  - 

'  Root  V.  State,  10  G.  &  J.  374;  Downs  v.  State,  19  Md.  571 :  Cushwa 
V.  State,  20  lb.  377,  282;  McDonald  v.  State,  45  lb.  90. 
-Code.  art.  5.  sec.  78. 


CHAPTEK  XIII. 

Specific  Offenses. 

§  i;i9. — Abduction. — Alxliictioii  means  in  law  the  takin<j 
and  carrying  away  of  a  child,  a  ward,  a  wife,  etc.,  either 
by  fraud,  persuasion  or  o])en  violence.' 

The  abduction  of  females  under  the  age  of  eighteen 
years"  and  the  alxluction  of  children  under  the  age  of 
twelve  years'  are  statutory  misdemeanors.  If  the  assent 
of  the  person  from  whose  possession  a  child  is  taken  be  ob- 
tained by  fraud,  the  taking  is  deemed  to  be  against  the 
■will  of  such  person.*  The  fact  that  the  offender  su|)poses, 
in  good  faith  and  on  reasonable  grounds,  that  the  child  is 
over  the  statutory  age  is  immaterial.^  The  phrase  "pur- 
poses of  prostitution"  has  been  held  to  contem[)late  com- 
mon, indiscriminate  intercourse  with  men,  not  with  one 
ujan.*^ 

Where,  upon  an  indictment  for  forcibly  taking  and  carry- 
ing away  children  under  the  age  of  twelve  years  and  also 
for  persuading  and  enticing  them  away  from  the  father, 
the  State  introduced  testimony  to  the  effect  that,  in  the 
absen(;e  of  the  father,  the  defendant  came  to  the  former's 
house  and  compelled  the  mother  an<l  children  to  go  with 
him,  through  threats  and  intimidation,  taking  them  to  the 
house  of  a  third  party,  evidence  of  the  declarations  of  the 
wife  made  to  such  party  upon  arriving  at  the  house,  that 
she  had  left  home  and  taken  her  children  with  her,  not  in- 


'  State  r.  George,  93  N.  C.  567. 

"Code,  art.  27,  sec.  I. 

^ lb.,  sec.  2. 

*R.  v.  Hopkins,  Car.  &  M.  2."i4;  Beyer  r.  People,  86  N.  Y.  oG'J. 

•Bishop  Stat.  Cr.  i!  631  a;  Reg.  r.  JPrince,  L.  R.  2  C.  C.  154:  S.  C, 
13  Cox  C.  C.  188;  State  r.  Ruhl,  8  Iowa,  447. 

•*  Bishop  Stat.  Cr.  'i  641:  Osborn  r.  State,  52  Ind.  526;  Slocum  /•. 
People,  90  111.  274:  Comm.  c  Cook,  12  Mete.  93:  Carpenter  r.  People. 
8  Barb.  603:  State  r.  RiiM,  supra :  State  r.  Stoyell.  54  Me.  24:  People 
i:  Parshall,  6  Park.  C.  C.  129. 


136  CRIMINAL   LAW. 

ten(lin«i- to  live  longer  with  lier  husband,  and  that  she  had 
procured  the  deleudant  to  assist  in  the  removal,  is  admis- 
sible in  defense.'  Upon  an  indictment  for  enticing  a  female 
under  the  age  of  eighteen  years  from  her  home  for  the  pur- 
pose of  ])rostitution,  the  defendant  may  show,  by  way  of 
impeaching  her  evidence,  that  she  had  stated,  "that  he 
was  not  to  blame,  but  it  was  her  fault  that  they  went 
away."-  The  previous  relations  of  the  parties  may  be 
l)roven  upon  an  indictment  for  enticing  a  female  for  purposes 
of  prostitution,  as  bearing  upon  the  intent  in  enticing  her 
away.* 

§  140. — Abortion. — There  is  a  conflict  of  authority  as  to 
whether  abortion  is  an  offense  at  the  common  law,  some 
cases  holding  that  abortion  is  an  indictable  misdemeanor 
at  common  law,*  others  the  contrary'  doctrine."  An  abortion 
that  results  in  the  death  of  the  woman"  or  the  death  of  the 
child"  after  it  passes  from  her  alive  is  common-law  murder; 
and,  when  the  act  is  committed  against  the  consent  of  the 
woman,  it  is  an  aggravated  assault.'*  The  whole  matter  is 
fully  covered  by  statute  in  this  State,  extending  to  the  ad- 
vertisement and  sale  of  articles  intended  to  be  used  for 
purposes  of  abortion  as  well  as  the  use  of  any  agency  or 
means  to  produce  abortion."  The  advising,  soliciting  and 
inciting  a  pregnant  woman  to  take  certain  noxious  and 
poisonous  drugs  for  the  purj)Ose  of  causing  an  abortion  is 
not  an  offense  under  the  statute."  • 

Where  the  offense  is  charged  as  having,  at  such  a  time 
and  ])lace,  been  committed  by  the  defendant,  be  "not  being 


'  Robinson  i:  State,  57  Md.  14. 

For  definition  of  '"entice,"  see  Nash  v.  Douglass.  12  Abb.  Pr   N. 
S.  187. 

-Phillips  V.  State,  60  Md.  XIV. 

=*  People  r.  Carrier.  46  Mich.  442. 

■I  Mills  r.  Comm.  13  Pa.  St.  633;    Comm.  v.  Demain,  6  Pa.  L.  J.  29: 
S.  C,  Brightly,  441;  State  v.  Slagle,  83  N.  C.  630. 

*  Mitchell  i:  Comm.,  78  Ky.  20t;    S.  C,  39  Am.  Rep.  227;    Comm. 
V.  Parker,  9  Mete.  263;  S.  C,  43  Am.  Dec.  396. 

«  Bishop  Stat.  Cr.  'i  742. 

'lb. 

'*Ib.,U44. 

'♦Code,  art.  27,  sec.  3:  Lamb  v.  State,  67  Md.  524. 
'"  Lamb  v.  State,  supra. 


Sl'ECU'K'    OFFENSES.  137 

then  and  there  a  ic^^ular  practitioner  of  medicine,"  this 
allegation  sufliciently  nej^atives  the  whole  proviso;  but  it  is 
not  clear  that  the  proviso  need  be  at  all  ne{j;atived.' 

Where  parties  are  jointly  indicted  for  producinji  an 
abortion,  the  declarati(Mis  of  one  may  be  tjiven  in  evidence, 
provided  such  evidence  be  followed  up  by  proof  of  con- 
spiracy or  confederation.-  Where  a  woman  was  tried  for 
having-  produced  an  abortion  upon  one  who,  at  the  time, 
was  an  inmate  of  her  house,  it  was  held  comi)etent  to  show 
the  character  of  the  house— that  it  was  a  house  of  ill-fame 
— in  order  that  the  jury  might  know  whether  the  jdace  w^as 
one  where  the  crime  charged  could  be  committed  without 
fear  of  detection  and  punishment.'  The  prosecution  may 
give  in  evidence  statements  made  by  the  accused,  when 
examined  as  a  witness  before  the  coroner's  inquest,  in  re- 
gard to  the  circumstances  attending  the  arrival  at  her 
house  of  the  deceased  and  her  sickness  and  death  there — 
the  accused,  at  the  time  of  the  examination,  not  being 
under  arrest  and  no  charge  having  been  preferred  against 
her.'  The  statement  of  the  deceased  in  relation  to  her 
symptoms  and  con<lition,  made  to  her  attending  physician, 
may  be  given  in  evidence,  but  not  her  statements  to  him  by 
way  of  narrative  of  what  had  happened  before  the  physician 
visited  her.'  Evidence  that  the  defendant  made  a  subse- 
(|uent  attempt  to  accomplish  the  abortion  by  different 
mesfns  is  admissible  to  show  with  what  purpose  and  intent 
he  made  the  attempt  charged  as  w  ell  as  to  corroborate  the 
evidence  of  the  tirst  attempt.'^ 

§  141.— Adultery. — Adultery  is  the  voluntary  sexual  in- 
tercourse of  a  married  person  with  one  not  the  husband  or 
wife.'    To  constitute  the  crime  of  adultery  as  against  the 


'Hays  r.  State,  40  Md.  333. 

-  lb. 

•lb. 

Mb. 

^Ib. 

"Lamb  /•.  State.  67  Mil.  324. 

^  Bishop  Stat.  Cr.  i;,3r)4. 

In  all  cases  where  one  of  the  parties  to  au  act  of  crimiual  iuter- 
course  is  married  and  the  other  is  not,  it  is  said,  by  Mr.  Bishop,  to 
be  adultery  in  the  married  party  and  fornication  in  the  unmarried, 
lb.,  i>  356. 


138  CRIMINAL    LAW. 

mail,  the  consent  of  the  woniaTi  to  the  carnal  interconrse  is 
not  indispensable,  bnt  the  otfense  may,  as  against  him, 
exist  thongh  the  interconrse  was  effected  by  force  and 
against  her  will,^  or  the  woman  was  in  such  a  state  of  stupe- 
faction as  to  be  incapable  of  consent.-  The  penalty  is  a  fine 
of  ten  dollars.' 

§  1 42. — Arson  and  Burning. — The  offense  of  arson,  which 
is  a  felony  at  common  law,  is  defined*  to  be  the  malicious^ 
and  voluntary  (or  wilfur)  burning"  of  the  house*  of  another,' 
by  night  or  by  day.  The  punishment  is  prescribed  by 
statute."  Statutes  also  provide  against  the  burning  of  un- 
tenanted dwelling-houses,^^  vessels^"  public  buildings,*^ 
arsenals,  magazines,  ships  or  naval  stores,"  fences,  hay  or 
tobacco,'^  outhouses  and  the  like,'"  and  attemi)ting  to  burn 
dwelling-houses,  outhouses  or  grain.'" 

The  word  ''empty"  in  section  12,  article  27,  Code  of 
Public  General  Laws,  must  be  considered  as  relative  and 
used  in  contradistinction  to  enumerated  articles,  and,  there- 
fore, within  the  view  of  the  law,  every  barn  that  does  not 


'State  r.  Donovan,  61  Iowa,  27S:  Egbert  r.  Greenwalt,  44  Mich. 
^45;  S.  C,  38  Am.  Rep.  260. 

^Cotnm.  v.  Bakeman.  131  Mass.  o77;  S.  C.  141  Am.  Rep.  248. 

^  Code,  art.  27,  sec.  5. 

■*3  lust.  66;    1  Hale  P.  C  566. 

^Kellenbeck  v.  State,  lO  Md.  431. 

*  Jones  r.  Hungerford.  4  G.  &  J.  402. 

'There  must  bean  actual  burning  of  the  house  or  some  part  of 
it,  though  it  is  not  necessax'y  that  any  part  should  be  wholly  con- 
sumed or  that  the  fire  should  have  any  continuance.  2  Bishop  Or. 
L.  ?  10;  Cochrane  r.  State.  6  Md.  400. 

*The  house  is,  in  general  terms,  said  to  include  a  building,  with 
its  outbuildings,  finished  for  habitation.  2  Bishop  Cr.  L.  ?  11;  Gib- 
son V.  State,  54  Md.  447. 

"2  Bishop  Cr.  L.  ^.<!  12.  13 

"Cede,  art.  27.  sec.  6. 

"lb.,  sec.  7. 

'« lb.,  sec.  8. 

'='Ib.,  sec.  9. 

'^Ib.,  sec.  10. 

'•^Ib.,  sec.  11.  ^ 

'*lb.,  sec.  12. 

"lb.,  sec.  13. 


SPKrn'IC   OFFENSES.  i;5*> 

conttiin  personal  property  must  be  considered  as  empty.* 
A  scliool-house,  not  jmrcel  of  adwellin<;-lioiise,  is  embiaeed 
by  the  statutory  terms  "any  other  outhouse  not  parcel  of  a 
dvvelliii<;-house."- 

The  word  "burn"  is  necessary  in  indictments  for  arson :^ 
it  must  also  be  allege<l  that  the  act  was  done  nialicion.sli/' 
iiud  feloniously:''  -Aud  the  property  must  be  described  in  such 
terms  as  to  show  that  it  is  a  proper  subject  of  arson."  Tlie 
burning  of  barns  and  other  outhouses  "not  parcel  of  any 
dwelling-house,"  is  a  distinct  offense  from  arson,  and  the 
qualifying  words  here  stated  are  essential  parts  of  the  de- 
scription of  the  oiJense  and  must  be  contained  in  the  in- 
dictment.' 

§  143. — Assault  and  Battery. — A  battery  is  detine<l  to 
be  the  unlawful  beating  of  another,  and  an  assault  is  an 
attempt  to  beat  another  without  touching  him.  But  it  is 
held  that  a  purpose  to  commit  violence  on  the  person  of 
another,  if  not  accomi)anied  by  an  efl'ort  to  carry  it  into 
immediate  execution,  falls  short  of  an  assault;  yet,  where 
an  unequivocal  purpose  of  violence  is  accompanied  by  any 
act  which,  if  not  stopped  or  diverted,  will  be  followed  hy 
personal  injury,  the  attempt  is  complete.* 

The  otfense  of  brutally  assaulting  and  beating  one's  wife 
is  specially  ju-ovided  for  by  statute.' 

Every  i)erson  (convicted  of  the  crime  of  an  assault  with 
intent  to  rob,  murder  or  commit  a  rape  shall  be  sentenced 
to  confinement  in  the  Penitentiary  for  not  less  than  two 
years  nor  more  than  ten  years."  In  these  cases  the  specific 
intent  is  of  the  essence  of  the  offense.  Tlius,  upon  an  indict- 
ment for  assault  with  intent  to  muider,  in  order  to  justify  a 
conviction,  the  facts  and  circumstances  proved  in  the  case 


'House  r.  House.  5  H.  &  J.  12.j. 
-Jones  V.  Hungeiford.  4  G.  «&  J.  402. 
^Cochrane  r.  State,  C  Md.  400. 
'Kelleubeck  r.  State.  10  Md.  4B1. 
•"*  Gibson  i:  State.  54  Md.  447. 
«Ib. 

"  Kellenbeck  /•.  State,  snpnt :  Gibson  /•.  State,  supra. 
"Lamb  r.  State,  07  Md.  .J24,  534,  033:  Handy  r.  Johnson.  ">  lb.  4o 
"Code,  art.  27,  sees.  14,  15. 
'"lb.,  sec.  1(5. 


140  CRIMINAL    LAW. 

must  be  such  that,  if  death  had  ensued,  the  off'eiise  would 
have  been,  not  manslaughter,  but  murder.'  In  the  case  ot' 
an  assault  with  intent  to  rape,  the  evidence  must  show,  not 
merely  that  the  defendant  committed  an  assault  upon  the 
woman  for  the  purpose  of  having  carnal  intercoui'se  with 
her.  but  that,  at  the  time  of  committing  the  assault,  he  in- 
tended to  comj)el  her,  by  force  and  against  her  will,  to  have 
sexual  intercourse  wit  h  him,  notwithstanding  any  resistance 
she  might  make.- 

The  matter  of  "night-assaults"  in  the  City  of  Baltimore 
is  covered  by  special  statutes.^ 

Where  an  assault  is  charged,  the  jury  are  to  decide 
whether  there  was  an  intention  to  do  any  violence  or  injury. 
If,  in  a  threatening  and  rude  or  angry  matiner,  a  man 
points  a  sword  or  fork  at  another,  or  shakes  his  fist  in  the 
face  of  another,  within  striking  distance,  attended  with 
present  ability  to  strike,  although  no  stroke  is  given,  such 
act  is  an  assault,  notwithstanding  the  failure  to  strike;  and 
the  jury  caunot  infer  a  want  of  intention  to  do  violence  or 
injury  merely  from  the  failure  to  strike,  m  the  absence  of 
any  declarations  or  circumstances  indicating  an  absence 
of  such  intention,  other  than  the  fact  that  no  blow  was 
given.  If,  however  there  are  any  declarations  or  circum- 
stances tending  to  indicate  a  want  of  such  intention,  then 
the  jury  are  bound  to  take  them  into  consideration  in 
deciding  upon  the  intention.^  Declarations  or  acts  accom- 
panying or  immediately  following  the  commission  of  the 
alleged  assault  are  competent  and  proper  evidence  to 
explain  the  act.  The  circumstances  proposed  to  be  given 
in  evidence  need  not  have  occurred  at  the  precise  time 
when  the  principal  fact  happened:  if  they  arose  either  at 
the  time  or  so  soon  thereafter  as  to  constitute  a  part  of  the 
transaction,  they  serve  to  give  color  and  detiniteness  to  it 
and  are   admissible.^     Where  an  assault  with   a   specific 


'  3  Wharton  Cr.  L.  ?.  1279:  Fenwick  v.  State,  63  Md.  239. 

-'State  r.  Cannada,  »>9  Iowa,  397;  Krnm  r.  State,  19  Neb.  728;  State 
r.  McDevitt,  69  Iowa,  549;  People  r.  Lynch,  29  Mich.  274:  Stale  r. 
Kendall.  34  N.  W.  Rep.  843. 

3  Code  P.  L.  L.,  art.  4,  sees.  71-73. 

*  Hand}'  '■.  Johnson,  5  Md.  450. 

'  lb. 


SPECIFIC    OFFEN.SKS.  141 

intent  is  cliai'icd,  the  defendant  may  testily  as  to  the 
particnlar  intent  entertained  by  liini.  Tims,  a  jierson  on 
trial  for  an  assault  witli  intent  to  murder  may  testify  as  to 
tlie  ]>ur|)ose  for  wliicli  lie  i)rocnred  tlie  implement  with 
which  he  committed  the  assanlt.' 

An  indictment  for  assanlt  with  intent  to  mnrder,  rob  or 
commit  a  rajte  is  j^ood,  if  it  state,  with  the  usnal  precision, 
the  facts  requisite  to  constitnte  an  assanlt,  and  allef>es  the 
intent  with  which  it  was  n)ade  in  the  words  of  the  statnte:^ 
bnt  it  may  }i<)  further  and  alle;j;e  an  assault  with  intent 
fclonionslii  to  murder,  rape  or  rob, '  The  means  of  eflecting 
the  criminal  intent  or  the  circumstances  evincive  of  the 
design  with  which  the  act  was  done  are  considered  matters 
of  evidence,  for  the  jury  to  demonstrate  the  intent,  bnt 
need  not  be  incorporated  in  the  indictment/  When  the 
indictment  is  for  assanlt  and  battery,  the  omission  to 
state  the  name  of  the  i)arty  upon  whom  the  assault  was 
committed  is  not  fatal,  if  it  appears  b^'  necessary  intend- 
ment from  another  portion  of  the  same  count  alleging  the 
battery — the  in<lictment  being  in  this  wise:  that  A^  did,  at 

such  a  time  and  place,  assanlt  one and  him,  the  said  B, 

did  then  and  there  beat,  etc'  Omitting  useless  verbiage, 
which  sometiuies  does  harm,  by  confusing. jurors,  an  indict- 
ment for  assault  and  battery  should  allege,  "that  A,  at 
such  a  time  and  place,  did  make  an  assanlt  upon  B,  and 
him,  the  said  B,  then  and  there  did  beat,  bruise,  wonnd 
and  ilUtreat."'^ 

§  144.— Bastardy. — This  entire  subject  is  regulated  by 
statnte."  The  proceedings  are  classed  as  criminal,  the 
oU'ense  being  a  uiisdemeanor,"  and  prosecutions  therefor 
must  be  commenced  within  one  year  from  the  birth  of  the 

'  Fenwick  r.  State,  (i;^  Md.  239;  Greer  v.  State,  53  lud    420. 
-Lewis  r.  Slate,  32  Md.  XII:  Holloliaii  r.  Slate.  lb.  399. 
^Hollohan  v.  State,  supra. 
^Stater.  Dent,  3  G.  «&  J.  8. 
^  Harne  r.  State,  39  Md.  5.J2. 
"  Bishop  Directious,  ''>.  201. 
'Code,  art    12. 

'Oldham  i:  State,  5  G.  90:  State  r.  Phelps.  9  Md.  21:  Oweus  r. 
State,  10  lb.  164. 


142  CRIMINAL    LAW. 

child.*  The  jnrisdictiou  and  iiiode  of  proceeding,  being^ 
special,  must  be  strictly  pursued.^ 

The  affidavit  of  the  niothei-,  the  foundation  of  the  pro- 
ceedings, may  i)roper]y  be  made  in  the  county  in  which  she 
and  the  child  reside,  and  be  transmitted  to  the  county  in 
which  the  supposed  father  resides;  and  a  magistrate  of  the 
latter  county  may  recognize  liim  to  appear  before  the  court 
thereof,  at  its  next  session,  to  answer  the  charge.^  The 
indemnity  must  be  given  to  the  county  in  which  the  child 
is.^  Yet,  while  the  i)rincipal  design  of  the  ])roceeding  is 
to  indemnify  the  county,  its  character  as  a  criminal  i)rose- 
cution  to  punish  fornication  is  not  thereby  changed,  and, 
when  the  offense  was  i)erpetrated  in  another  State,  no 
prosecution  can  be  maintained  here.-'  If  the  putative 
father  feels  aggrieved  by  the  judgment  of  the  magistrate, 
he  must  i)roceed  as  the  statute  directs;  otherwise  the  action 
of  the  magistrate  is  conclusive."  When  the  party,  how- 
ever, proceeds  as  directed,  by  entering  into  a  recognizance 
for  his  ai)pearance  at  court,  the  same  i)roceedings  are  had 
as  in  other  criminal  cases;  that  is,  there  must  be  a  present- 
ment and  indictment,  upon  which  the  trial  must  proceed 
as  in  other  criminal  cases."  The  regularity  of  the  ])roceed- 
ings  before  the  n)agistrate  does  not  come  into  question 
upon  the  indictment.*  Wheie  the  mother  has  given  security 
to  indemnify  the  county,  all  furtheri)roceedings  are  barred.* 

The  indictment  need  not  allege  the  residence  of  the 
mother,  but  must  show  in  what  county  the  child  is  at  the 
time  of  the  finding  thereof.'"  The  proceedings  before  the 
magistrate  need  not  be  alleged.** 


'  Bake  r.  State.  21  Md.  422;  Nefif  v.  State,  57  lb.  385. 

2  Root  V.  State,  10  G.  &  J.  374. 

='Ib. 

■•  lb.:  Mong  r.  State,  lb.  380;  Norwood  v.  State,  45  Md.  68;  Robin- 
son V.  State,  68  lb.  617. 

*  Owens  i:  State,  10  Md.  164. 

«  Huyett  V.  Slick,  43  Md.  284. 

'Norwood  V.  State,  supra. 

®  Netf  V.  State,  supra. 

9 State  V.  Trimble.  33  Md.  468. 
'"  Robinson  v.  State,  supra. 
"  Norwood  V.  State,  supra. 


SPK(J1FIC    OFFENSES.  14.'i 

The  ordinary  rules  in  re<»ar(l  to  the  reknaiiey  and  admis- 
sihiiity  of  evidence  |)revail.'  The  mere  )»iesenee  of  the 
child  in  »:oiirt  is  not  •;roiind  ol' objection.'  ]>nt  it  has  been 
considered  "  dan«;'eroiis  <h)ctrine  "  to  permit  a  (diihTs 
paternity  to  be  questioned  or  i)roved  by  the  com  pari  nj;;s  of 
the  color  of  its  hair  or  eyes  with  that  of  the  allef;ed  lather/ 
The  i)roceedin<;'  bein<;-  criminal,  the  i)aternity  of  the  child 
should  be  established  beyond  a  reasonable  doubt/ 

§  14"). — Bigamy. — The  Statute  of  1  Jac.  1,  ch.  11,  is  in 
fon-e  in  this  State,  nuxlilied  by  section  17,  article  27  of  the 
Code  of  Public  General  Laws  as  to  the  punishment  of  the 
offense,  but  not  as  to  the  grade,  which  is  felony,  nor  as  to 
the  essential  characteristics.^ 

The  State  must  satisfy  the  Jury,  beyond  a  reasonable 
<loubt,  that,  at  the  very  time  of  the  second  marriage,  the  tirst 
husband  or  wife,  as  the  case  may  be,  was  alive.*  Marriage, 
in  such  cases,  can  not  be  proven  by  general  reputation,  co- 
habitation or  acknowledgment."  A  marriage,  valul  in  all 
resi)ects,  must  be  shown  by  direct  i)roof.*  To  constitute  a 
lawful  marriage  in  Maryland,  some  religious  ceremony 
must  be  added  to  the  civil  contract.'^ 

it  has  been  held  pro])er  to  charge  the  jury  that,  if  they 
believe  that  the  delendant  had  been  informed  that  his  wife 
had  obtained  a  divorce,  and  that  he  had  used  due  care  and 


'  Norwood  r.  State.  45  Md.  C8. 

*  Hutchinson  v.  State,  19  Neb.  262. 
^People  (•   Carney,  29  Hun,  47. 

As  to  allowing  the  ciiild  to  be  exhibited  to  the  jury,  see  State  ir. 
Smith.  iH  Iowa,  104:    S.  C,  37  A.ra.  Rep.  192;    Clarke  r.  Bradstreet, 
80  Me.       ;  S.  C,  10  Crim.  L   Mag.  881. 

As  to  evidence,  on  behalf  of  the  accused,  of  the  cliild's  resem- 
blance to  a  third  pL-r.si)n.  see  Paulk  c.  State,  52  Ala.  427:  S.  C  1 
Am.  Cr.  R.  57. 

"  Van  Tassel  i;.  Stale,  59  Wis.  351 . 

*  Barber  v.  State,  50  Md.  161. 

« Jones  ('.  Jones,  48  Md.  391,  398,  S99;  Reg.  r.  Lumiey.  L  R.  1  C. 
C.  R.  196;  Squire  v.  State,  46  Ind.  459. 

'Sellman  r.  Boweu,  8  G.  &  J.  50. 

"Bishop  Stat.  Cr.  'i  609;  Catherwood  v.  Caslou.  13  M  &  W.  261; 
Gaines  r.  Relf,  12  How.  472,  535;  Gahagan  r.  People.  1  Park.  Cr.  R. 
378. 

^Deuison  v.  Denisou,  35  Md.  361. 


144  CRIMINAL   LAW. 

made  due  inquiry  to  ascertain  the  truth,  and  had,  consider- 
ing all  the  circumstances,  reason  to  believe,  and  did  believe, 
at  the  time  of  the  second  marriaoe,  that  his  former  wife 
had  been  divorced  from  him,  then  they  should  acquit/  The 
courts  have  been  somewhat  strict  in  requiring  full  proof  of 
the  allegations  made  in  the  indictment."  When  the  first 
marriage  was  contracted  abroad,  the  prosecution  must 
prove  the  validity  according  to  the  foreign  law."' 

§  146. — Blasphemy  and  Profanity. — The  offenses  of 
blasi)hemy'  and  ])rof;niity'  are  defined  and  the  ])unishment 
and  mode  of  jirocedure  are  regulated  by  statute. 

§  147. — Boundaries. — Penalties  are  imposed  for  destroy- 
ing boundaries"  and  for  setting  up  new  boundaries  without 
notice,'  and  the  mode  of  procedure**  is  regulated,  by  the 
provisions  cited  in  the  notes. 

§  148. — Bribery  and  Impeding  Justice. — Bribery  in  the 
case  of  i)ul)lic  oflicers,''  embracery  in  tlie  case  of  jurors,*"  in- 
fluencing, intimidating  or  impeding  jurors,  witnesses  and 
court  oliticers  and  other  obstructions  of  justice,^'  and  bribery 
of  voters''^  are  all  provided  for  in  the  sections  cited  in  the 
notes  hereto. 

•  §  140. — Burglary  and  Kindred  Offenses. — A  burglar  is 
"he  that,  in  the  night-time,  breaketh  and  entereth  into  a 
mansion-house  of  another,  of  intent  to  kill  some  reasonable 
creature,  or  to  commit  some  other  felony  within  the  same, 
Avhetlier  his  felonious  intent  be  executed  or  not. '"^  The 
grade  of  the  offense  is  felony.  There  must  be  a  breaking^ 
which  signifies,  to  make  an  opening  or  way  of  admission 


'  Squire  v-  State,  46  Ind.  459. 

Mi.  r.  Deeley.  4  C  &  P.  579:    S.  C,  1  Moody  C.  C.  303-,    Drake's 
Case,  1  Lew.  C.  C.  25. 

•'People  V.  Lambert.  5  Mich.  349. 

"Code,  art.  27.  sec.  18. 

Mb.,  sec.  19. 

«Ib.,  sec.  20. 

"lb.,  sec.  21. 

nb..  sec  22. 

"lb.,  sec.  28. 
'"lb.,  sec  24. 
"  lb.,  sec.  25. 
'nb.,  sec.  26. 
"  Robinson  v.  State,  53  Md.  151. 


SPECIFIC    OFFENSES.  145 

into  the  huildinj;;'  an  entry,  wliicli  is  completed  when  any 
part  of  the  body  or  when  the  instrument  used  in  the  com- 
mission of  the  felony  passes  within  the  dwellin*f-house;-  and 
the  breaking'  and  entry  must  both  be  at  niyht.^  Those 
I)()rtions  of  the  morning"  and  evening  wherein,  though  the 
sun  is  l)eh)W  tlie  horizon,  siillicicnt  is  above  for  the  feat ui-es 
of  a  man  to  be  reasonably  discerned  are  day/  The  bicak- 
ing  must  be  of  another's  chceUing-honse,  which  term  means 
the  apartment,  building  or  cluster  of  buildings  in  which  a 
man  with  his  family  resides.'  The  intent  must  be  to  com- 
mit a  felony,  not  a  misdemeanor;"  and  it  must  be  clearly 
established;  but  it  may  be  inferred  from  the  actions  of  the 
accused,  or  shown  by  his  prior  declarations."  The  specific 
-/n<ew<  charged  in  the  indictment  must  be  proven;*  and  it 
must  be  shown  to  have  existed  at  the  time  of  the  original 
breaking  and  entry.'  The  penalty  is  prescribed  by  statute." 
The  crime  of  breaking  a  dwelling-house  in  the  day  time, 
with  intent  to  commit  murder  or  other  felony  therein,  or 
breaking  a  store-house,  warehouse  or  other  outhouse,  in 
the  day  or  night,  with  such  intent,"  and  the  crime  of  break- 
ing into  any  shop,  storehouse,  tobacco  house  or  warehouse, . 
although  the  same  be  not  contiguous  to  or  used  with  any 

•Bishop  Stat.  Cr.  §  312. 
-2  Bishop  Cr.  L.  9.  92. 

■•  Bishop  St.  Cr.  ?.  376. 

nh.,U  278-290. 

Where  a  person  occupying  a  room  or  dwelling  broken  into  abides 
therein  only  by  sufferance,  having  no  jixed  intei-esf,  the  burglary 
can  not  be  laid  as  of  the  dwelling  of  such  occupant.  1  Hawk.  P.  C. 
ch.  38,  s.  13;  2  East  P.  C'  riOl-oOo;  R.  v.  Stock,  2  Taunt.  309:  R.  v. 
Wilson,  R.  &  R.  115:  K.  r.  Sefton,  lb.  202:  R.  r.  Jenkins.  lb.  244:  R. 
V.  Davis,  lb.  499;  R.  r.  Jobling.  lb.  ~y2'r.  Reg.  r.  Courtenay,  5 
Cox  C.  C.  218;  State  v  Betsall,  11  W.  Va.  703,  728;  Rodgers  v.  Peo- 
ple, 86  N.  Y.  360:  S.  C,  40  Am.  Rep.  548;  Neubrandt  r.  State,  53 
Wis.  89. 

« Robinson  r.  State,  53  Md.  151. 

'People  i\  Marks.  4  Park.  C.  C.  153;  State  v.  Covvell,  12  Nev.  337. 

*  Neubrandt  r.  State,  nupra. 

»2  Bishop  Cr.  L.  §  113. 

'"Code,  art.  27,  sec.  27. 

"lb.,  sec.  28. 

10 


146  CRIMINAL    LAW. 

mansion  house,  and  stealing  tlience  to  the  value  of  one 
dollar  or  upwards^  are  likewise  punishable  by  virtue  of 
statutory  provisions. 

§  150. — Concealed  "Weapons. — The  carrying  or  wearing 
of  dangerous  or  deadly  weapons  concealed  upon  or  about 
the  person  and  the  carrying  or  wearing  of  such  weapons 
openly,  with  the  intent  or  i)urpose  of  injuring  any  person, 
are  statutory  offenses.-  Such  statutes  have  frequently 
been  held  not  to  conflict  with  the  coustitutional  right  of 
the  people  of  the  United  States  to  keep  and  to  bear  arms.* 

The  word  "concealed"  has  been  held  to  mean,  wilfully 
and  knowingly  covered  and  kept  from  sight.*  The  phrase 
"about  his  person"  has  been  held  to  mean,  concealed  near, 
in  close  proximity  to  him,  and  within  his  control  and  easy 
reach,  so  that  he  could  promptly  use  it,  if  impelled  to  do  so 
by  any  violent  motive.^  "Carry,"  in  the  sense  of  statutes 
prohibiting  the  carrying  of  arms,  means  "wear.""  If  the 
weapon  is  merely  and  in  good  faith  beiug  transported,  to 
be  repaired,  or  given  to  another,  or  for  purposes  of  trade, 
or  any  like  object,  it  can  not  be  said  to  be  worn.'' 


'  Code,  art.  27,  sec.  29. 

=^Ib.,  sec.  30. 

=* State  V.  Speller,  86  N.  C  697;  State  v.  Jumel,  i;S  La.  Ann.  399; 
Wright  V.  Coram.,  77  Pa.  St.  470;  State  v.  Shelby,  90  Mo.  302;  State 
V.  Mitchell,  3  Blackf.  (Ind.)  229;  State  v.  Reid,  1  Ala.  612;  Andrews 
V.  State,  3  Heisk.  (Tenn.)  165;  S.  C,  8  Am.  Rep.  8;  Aymette  v.  State, 

2  Humph.  (Tenn.)  154:  State  v.  Wilburn,  7  Baxt.  (Tenn.)  57;  Haynes 
0.  State,  5  Humph.  (Tenn.)  120;  State  v.  Buzzard,  4  Ark.  18;  Fife  v. 
State,  31  lb.  455;  S.  C,  25  Am.  Rep.  556;  Halle  v.  State,  38  lb.  564; 
Hill  V.  State,  53  Ga.  472;  Nunn  v.  State,  1  lb.  243;  English  v.  State, 
35  Tex.  493;  S.  C,  14  Am.  Rep.  374;  U.  S.  v.  Cruikshank,  92  U.  S. 
542.     But,  see  Bliss  v.  Coram.,  2  Litt.  (Ky.)  90. 

*  Bishop  Stat.  Cr.  U  787,  758;  State  v.  Johnson,  16  S.  C  187;  Street 
V.  State,  67  Ala.  87;  Smith  v.  State,  69  Ind.  140. 

*  State  V.  McManus.  89  N.  C  555. 

«Page  V.  State,  3  Heisk.  (Tenn.)  198;  State  v.  Carter,  36  Tex.  89; 
Owen  V.  State,  31  Ala.  389. 

^Carr  v.  State,  34  Ark.  448;  S.  C,  36  Am.  Rep.  15;  Page  v.  State, 

3  Heisk.  (Tenn.)  198;  State  v.  Gilbert,  87  N.  C.  527;  Waddell  v.  State, 
37  Tex.  355;  Christian  v.  State,  lb.  475;  Brooks  v.  State.  15  Tex.  App. 
88:  Mangum  v.  State,  lb.  362;  Siate  v.  Brodnax,  91  N.  C.  543;  State 
V.  Harrison,  93  lb.  605;  Pressler  v.  State,  19  Tex.  App.  52:  S.  C,  53 
Am.  Rep.  3b3;  Moorefield  c.  State,  5  Lea  (Tenn.)  348.     Cf.  Cutsinger 


SPECIFIC    OFFENSES.  147 

The  statements  of  defeiulants  charged  with  this  offence 
have,  under  various  circumstances,  been  hehl  admissible  to 
criminate^  as  well  as  to  exculpate.*  Carrying  a  weapon  con- 
cealed is  an  act  continuous  in  its  nature,  and  there  can  be 
only  one  conviction,  even  though  the  weapon  be  exhibited 
at  ditlerent  houses  in  the  same  neighborliood.'  The  carry- 
ing can  not  be  prosecuted  by  the  same  commonwealth  in 
more  than  one  suit.* 

§  1.")!. — Conspiracy. — Jiriefly  stated,  conspiracy  is  the 
corrupt  agreeing  together  of  two  or  more  persons  to  do,  by 
concerted  action,  something  unlawful,  either  as  a  means  or 
an  end.'  The  thing  intended  need  not  be  accomplished; 
the  bare  combination  constitutes  the  crime. '^ 

It  is  sufficient  to  allege  in  the  indictment  the  conspiracy 
and  the  object  of  it;  the  means  by  which  it  was  intended 
to  be  accomplished  need  not  be  set  out." 

The  acts  and  declarations  of  one  of  several  parties  jointly 
indicted  for  this  offense  are  admissil)le  against  his  co-de- 
fendants, provided  the  combination  be  proven.* 

One  person  alone  can  not  be  convicted  of  conspiracy,' and 
the  record  of  acquittal  of  one  defendant  is  evidence  for  his 
co-defendants  subsequently  tried;'"  but  the  trial  and  acquit- 
tal of  parties  elsewhere  can  not  deprive  this  State  of  juris- 
diction over  a  conspiracy  committed  within  its  borders." 
AVhen  the  field  of  o])eiations  embraces  several  states,  the 
state  in  which  all  or  anv  of  them  reside  and  in  which  the 


r.  Comm.,  7  Bush  (Ky.)  392;  State  v.  Martin,  31  La.  Ann.  849;  Walls 
r.  State,  7  Blackf.  (Ind.)  572;  Morton  v.  State.  46  Ga.  292;  State  r. 
Woodfin.  87  N  C  526;^Titus  r.  State.  42  Tex.  578;  Preston  v.  State, 
03  Ala.  127. 

'Shorter  r.  State.  63  Ala.  129. 

-  Wilson  *•.  State,  33  Ark.  557. 

=•  Smith  r.  State.  79  Ala.  257. 

'  State  r.  Shelby,  90  Mo.  302. 

*2  Bishop  Cr.  L.  '<>.  171;  State  v.  Buchanan,  5  H.  &  J.  317. 

''2  Bishop  Cr.  L.  ^  192;  State  c  Buchanan,  .tii])ra. 

'State  c.  Buchanan,  sujird. 

«  Bloomer  r.  State,  48  M.l.  521.     Cf.  State  v.  Jackson,  82  N.  C.  565. 

»2  Bishop  Cr.  L.  ?.  187;   note,  5  H.  «&  J.  500. 

'"  Bloomer  v.  State,  sitpra. 

"lb. 


148  CRIMINAL   LAW. 

conspiracy  ori<;inate(l  or  was  conducted  has  jurisdiction  to 
punish  the  offense.^ 

An  agreement  or  combination  by  two  or  more  persons  to 
do  or  procure  to  be  done  any  act  in  contemplation  or 
furtherance  of  a  trade  dispute  between  employers  and  work- 
men is  not  indictable  as  a  conspiracy,  if  such  act,  com- 
mitted by  one  person,  would  not  be  punishable  as  an 
oifense.- 

§  152. — Counterfeiting  and  Forgery. — The  term  counter- 
feit signifies  the  fabrication  of  a  false  image  or  representa- 
tion. It  refers  usually  to  imitations  of  coin  or  paper 
money.  Forgery  is  defined  to  be  the  false  making  or 
materially  altering,  with  intent  to  defraud,  of  any  writing 
which,  if  genuine,  might  apparently  be  of  legal  efticacy,  or 
the  foundation  of  a  legal  liability.^  The  entire  subject  of 
counterfeiting  and  forgery  is  regulated  by  statutes  in  this 
State.*  The  mode  of  pleading  and  the  sufficiency  of  the 
evidence  are  likewise  regulated  by  statnte.^  The  alleged 
forged  writing  should  be  produced  at  the  trial,*'  or  the 
proper  foundation  laid  for  secondary  evidence,  as  in  civil 
cases."  To  prove  the  scienter,  evidence  is  admissible,  that 
the  defendant  had,  about  the  same  time,  uttered  or  at- 
tempted to  utter  other  forged  instruments  of  the  same  de- 
scrii)tion.^ 

§  153. — Cruelty  to  Animals. — There  is  no  general  legis- 
lation upon  this  subject.  Various  kinds  of  cruelty  and 
neglect  are  provided  for  in  local  laws  relating  to  the  City 
of  Baltimore"  and  several  of  the  counties. 


'  Bloomer  r.  State,  48  Md.  521. 

2 Code,  ait.  27,  sec.  31. 

3  2  Bishop  Cr.  L.  |  528;  Arnold  v.  Cost,  3  G.  &  J.  220. 

"  Code,  art.  27,  sec.  32-46. 

*Ib.,  'i  291;  ante,  p.  73;  Hawthorn  v.  State,  56  Md.  530. 

As  to  forgery  of  certificates  of  "Baltimore  City  stock,"  see 
Bishop  V.  State,  55  Md.  138.  As  to  forgery  of  bank  checks,  see 
Hawthorn  v.  State,  supra;  Laird  v.  State,  61  Md.  309. 

«  3  Greeul.  Ev.  ^  107. 

Mb.;  Brashears  v.  State,  58  Md.  r,^3. 

**  3  Greenl.  Ev.  ^  111 ;  Bishop  v.  State,  supra;  Bell  v.  State,  57  Md. 
108. 

®Code,  P.  L.  L.  art.  4,  sees.  241-245. 


SPECIFIC    OFFENSES.  14!) 

§  154. — Defaulters. —  Deiaultiiift- public  officers  are  pun- 
isliable  for  neglect  to  pay  over  public  nioneys  within  the 
time  specified  by  statute.' 

§  lo5. — Destroying  Property  Maliciously. — I'nderthis 
title,  various  otlenses  are  (ielined  and  made  punishable  by 
statute. - 

§  156. — Disturbance  of  Public  Peace. — Any  person  who 
shall  wilfully  hinder  or  obstruct  the  free  passage  of  persons 
passing  by  or  along  any  public  street  or  highway  in  any 
city  or  town  of  this  State,  or  who  shall  wilfully  disturb  any 
neighborhood  in  such  city  or  town,  by  loud  and  unseemly 
noises,  or  shall  profanely  curse  and  swear,  or  use  obscene 
language,  upon  or  near  to  any  such  street  or  highway, 
within  the  hearing  of  persons  passing  by  or  along  such 
highway,  shall,  upon  conviction  thereof,  be  sentenced  to  a 
fine  of  not  less  than  one  dollar  and  to  the  costs  of  his  prose- 
cution, or  to  such  fine  and  costs  and  to  imprisonment  in 
jail,  in  the  discretion  of  the  court — this  section  not  to  apply 
to  i'^rederick  County.^ 

§  157. — Drunkenness  and  Disorderly  Conduct. — Every 
person  who  shall  be  found  drunk,  or  acting  in  a  disorder!}' 
njanner,  to  the  disturbance  of  the  public  peace,  upon  any 
public  street  or  highway,  in  any  city  or  county  of  this 
State,  or  at  any  place  of  public  worship  or  public  resort  or 
amusement  in  any  city  or  county  of  this  State,  shall  be 
deemed  guilty  of  a  mis<lemeanor,  and,  upon  conviction 
thereof,  shall  be  subject  to  a  fine  of  one  dollar  and  costs, 
and  shall  be  committed  until  such  fine  and  costs  are  i)aid, 
or  until  such  offender  is  discharged  by  due  course  of  law. 
The  Justices  of  the  peace  for  the  respective  counties  of  this 
State  sliall  have  concurrent  jurisdiction  over  such  offense 
with  the  Circuit  Courts  for  their  respective  counties;  and 
the  justices  of  the  peace  selected  to  sit  at  the  respective 
station-houses  in  the  City  of  Baltimore  shall  have  concur- 
rent jurisdiction  over  such  offense  with  the  Criminal  Court 


'  Code,  art.  27,  sec.  47:  Johns  r.  State,  55  Md.  350;  State  v.  Nichol- 
son, 67  lb.  1. 

2  Code,  art.  27,  sees.  48-66. 

3  Code,  art.  27,  sec.  67. 


150  CRIMINAL    LAW. 

of   Baltimore — this    section    not    to    apply  to  Frederick 
Connty.^ 

§  158. — Dueling. — A  duel  is  a  fighting  together  of  two 
persons,  by  previous  concert,  and  with  deadly  weapons,  to 
settle  some  antecedent  quarrel."  Persons  fighting  duels,  or 
sending  or  accepting  challenges  so  to  do,  or  acting  as 
seconds,  or  otherwise  aiding  or  assisting  the  principal  of- 
fenders, are  incapable  of  holding  office,  unless  relieved  from 
the  disability  by  act  of  Assembly.*  The  offense  is  regu- 
lated bv  statute.* 


'  Code,  art.  27,  sec.  68. 

A  person  is  drunk,  in  a  legal  sense,  when  he  is  so  far  under  the  in- 
fluence of  intoxicating  liquor  that  his  passions  are  visibly  excited 
or  his  judgment  impaired  by  the  liquor — State  v.  Pierce,  65  Iowa, 
85.  88. 

-2  Bishop  Cr.  L.  ?  213. 

^ Const.,  art.  3,  sec.  41. 

*  Code,  art.  27,  sees.  69-71. 


CHAPTER   XIV. 

Specific  Offenses — Continued, 

§  150. — Elections.  —  Various  offeuses  are  created  an<l 
penalties  imposed  by  article  3.i,  Code  of  Public  General 
Laws,  title  "  P^lections, "  and  by  article  4,  Code  of  Public 
Local  Laws,  title  •'  City  of  Baltimore,"  under  the  subtitle 
"Elections,"  embraced  within  sections  262  to  27.),  inclu- 
sive, and  sub-title  "  Primary  Elections,"  embraced  within 
sections  274  to  207,  inclusive.  The  sale,  disposal  or  giving 
away  of  liquors,  or  the  keeping  open  of  drinking  establish- 
ments on  election  days  in  the  counties  is  i)unishable  by  a 
fine  of  not  less  than  fifty  nor  more  than  one  hundred  dol- 
lars.^ In  the  City  of  Baltimore  it  is  unlawlul  to  keep  open 
on  any  election  day  any  drinking  establishment,  or  bar- 
room, or  grog  shop,  or  to  furnish  any  spirituous  or  fer- 
mented liquor  therein  or  therefrom.  Any  person  guilty  of 
violating  this  prohibition,  or  of  retailing  or  dispensing  any 
spirituous  or  fermented  liquors  on  any  election  day,  forfeits 
his  license,  if  he  shall  have  taken  out  any,  and  is  disqualitied 
from  taking  out  any  other  license  for  the  sale  of  such 
liquors  for  the  space  of  five  years  thereafter,  and  is,  more- 
over, liable  to  a  penalty  of  five  hundred  dollars,  to  be  re- 
covered by  the  Board  of  police  by  civil  action  in  the  name 
of  the  State.- 

Cnder  the  former,  perhaps  also  the  latter  statute,  the 
giving  away  of  liquors  in  one's  own  house  on  election  day 
to  a  friend,  in  the  course  of  hospitality,  is  an  otlense.^ 

§  160. — Embezzlement. — The  law  relating  to  this  offense 
is  statutory,  arising  out  of  a  desire  to  amend  the  law  of 
larceny  so  as  to  reach  those  cases  where  there  has  been  a 
stealing  of  goods  or  chattels  but  no  technical  asportation 
or  trespass  in  the  original   acquisition  of  possession.     A 


'  Code,  art.  33,  sees.  88,  89. 
«Code  P.  L.  L.,  art.  4,  sec.  264. 
=*  Cearfoss  r.  State,  43  Md.  403. 


152  CRIMINAL   LAW. 

variety  of  ofFeuses  is  embraced  niider  this  title/  Embez- 
zlement maj'  be  defined  to  be  a  fraudulent  api)ropriatioD 
of  the  money  or  goods  of  another,  which  were  entrusted  to 
the  care  of  the  person  ai)[)ropriating  the  same  as  servant, 
bailee  or  otherwise. 

§  161. — Escaping  from  Penitentiary. — Convicts  escap- 
ing may  be  sentenced  to  such  additional  confinement  and 
hard  labor,  agreeably  to  the  laws  of  this  State,  as  the 
Criminal  Court  of  Baltimore  shall  adjudge  and  direct, 
and  persons  aiding  them  are  liable  to  such  confinement  in 
the  Penitentiary-  as  the  said  Court  may  adjudge,  not  less 
than  eighteen  months  nor  more  than  two  years. - 

§  162. — False  Pretenses. — This  offense  is  whollj'  statu- 
tory.* A  false  pretense  may  be  defined  to  be  such  a  fraud- 
ulent representation  of  an  existing  fact  or  past  event,  by 
one  who  knows  it  not  to  be  true,  as  is  adapted  to  induce 
the  person  to  whom  it  is  made  to  part  with  something  of 
value.*  The  false  representation  must  be  the  operative 
cause  of  the  parting  with  the  money  or  other  article.  If 
the  person  whose  property  is  obtained  knows  the  repre- 
sentations to  be  false,  there  can  be  no  conviction.^ 

§  16;>. — Female  Sitters. — Female  sitters  are  prohibited 
at  variety  entertainments  and  concert  halls.  All  females 
who  are  allowed  in  or  about  the  premises,  who  shall  drink, 
smoke  or  partake  of  any  kinds  of  eatables  or  refreshments 
at  the  expense  of  others,  or  solicit  others  to  purchase  such 
things  as  may  be  purchased  there,  upon  which  they  shall 
receive  or  expect  to  receive  a  commission,  or  who  may  be 
paid  a  regular  salary  therefor,  or  who  participate  in  any 
way  in  the  profits  thereof  are  deemed  sitters." 

§  161. — Female  Waiters. — Women  or  girls  may  not  be 
employed  as  waiters  at  theaters,  museums  or  other  places 
of  amusement  in  the  City  of  Baltimore.' 

'  Code.  art.  27,  sees.  72-80. 
2  Code.  art.  27,  sec.  81. 
••'  Code,  art.  27,  sees.  82,  84. 

As  to  form  of  indictvieiit ,  see  State  v.  Scribner.  2  G.  &  J.  246,  253; 
Code,  art.  27,  sec.  288. 
*2  Bishop  Cr.  L.  ?  415. 
*  Stansbury  v.  Fogle.  37  Md.  369,  388,  389. 
«Code,  art.  27,  sees.  85,  86. 
'Code  P.  L.  L.,  art.  4,  sees.  913,  914. 


SPECIFIC   OFFENSES— CONTINUED.  153 

§  105. — Fraud. — ^';u•iou.s  acts  and  omissions  in  relation 
to  bills  of  ladiny:,'  butter  and  oleoniargaiine,-  conversion 
by  factors  of  consi^jned  goods,'  conversions  of  money  or 
securities/  corporate  niisrei)resentation,^  sales  of  tlour  and 
whiskey,*  fruit  and  vegetable  packing,"  frau<l  upon  gas 
conii)anies,''  fraud  by  hirers,'-*  millers  mixing  Hour,'"  fraud 
by  mortgagors  of  ])ersonal  property,"  rehypothecation  of 
personal  securities,'-  sales  of  seeds,''  special  {)artnerships,'* 
and  warehouse,  storage  and  elevator  receipts'^  are  made 
penal  by  statutes  under  this  title. 

§  IGO. — Fugitive  Convicts.  —  Fugitive  felons  may  be 
sentenced  to  undergo  a  continement  in  the  Penitentiary 
during  the  residue  of  the  term  for  which  thej'  ha^■e  been 
condemned,  but,  if  demanded  by  the  state  whence  they 
escaped,  must  be  delivered  up.'* 

§  167.— Funerals— Collection  of  Tolls  from.— The  col- 
lection of  tolls  ui)on  any  carriages  or  other  vehicles,  or 
horses  going  to  or  returning  from  any  funeral,  is  made 
punishable  by  statute." 

§  1()S. — Gaming. — All  games,  <levices  and  contrivances 
at  which  money  or  any  other  thing  shall  be  bet  or  wagered 
are  prohibited  and  punishable  by  statute."  If  a  billiard 
table,  which  is  expressly  exempted  from  the  penalties  of 


'  Code,  art.  27,  sec.  87. 

-lb.,  sees.  88-91;  Pierce  r.  State,  63  Md.  592. 

=*  Code,  art.  27.  .^ec.  92. 

'  lb.,  sees.  93-96. 

Mb.,  sec.  97. 

"lb.,  sec.  98-99. 

Mb.,  sees.  100-104. 

"lb.,  sees.  105,  106. 

'lb.,  sec.  107. 
'Mb.,  sees.  108-110. 
"  lb.,  sec.  111. 
"lb.,  sec.  112, 
'■■'lb.,  sees.  113-117. 
'Mb.,  sec.  118. 
•Mb.,  sec.  119. 

As  to  what  constitutes  a  warehouse  or  storage  receipt,  see  State 
V.  Bryant,  63  Md.  66. 
'«Code,art.  27,  sec.  120. 
'Mb.,  sec.  121. 
'Mb.,  sees.  122-132. 


154  CRIMINAL    LAW. 

this  legislation,  were  in  fact  used  as  a  faro  table,  it  would, 
ipso  facto ^  lose  the  immunity  conferred  upon  it.^  The  keep- 
ing* of  any  house  or  other  place  for  the  purpose  of  gambling 
is  within  the  letter  of  the  law."  But  the  selling  of  pools 
on  horse  races  and  the  keeping  of  rooms  where  such  pools 
are  sold  do  not  constitute  an  offense  within  the  meaning 
of  the  statutes  against  gambling.'  Money  lost  at  gaming 
may  be  recovered  by  suit,*  and  all  securities  given  for 
gambling  considerations  are  absolutely  void.^  The  form 
of  indictment  and  the  manner  of  procedure  under  the 
gaming  laws  are  also  regulated  by  statnte," 

§  169. — Graveyard  Desecration. — The  removal  or  at- 
tempt to  remove  bodies  from  graveyards,  burial  grounds  or 
vaults  after  burial  therein,  unless  under  authority  of  the 
State's  attorney  for  the  city  or  county  where  such  grave- 
yard, burial  ground  or  vault  is  situated,  for  the  purpose 
of  ascertaining  the  cause  of  the  death  of  the  person  whose 
body  is  so  removed,  or  for  the  purpose  of  reburial,  is  a  mis- 
demeanor, punishable  by  not  less  than  five  nor  more  than 
fifteen  years  in  the  Penitentiary,''  this  provision,  however, 
having  no  application  to  such  persons  as  shall  have  been 
buried  in  Potter's  field.*  Other  species  of  graveyard  dese- 
cration are  also  made  punishable  by  statute.'-' 

§  170.— Gunning. — Hunting  upon  the  lands  of  another 
with  gun  or  dog,  without  license  from  the  owner  or  possessor 
is  an  offense  for  which  the  offender  forfeits  five  dollars  to 
the  party  aggrieved,  recoverable  before  a  justice  of  the 
peace  in  the  name  of  the  State — this  section  not  applying 
to  Dorchester  County." 

§  171  — Health. — Under  this  title,  the  manufacture  or 
.sale  of  candy  or  cakes  which  may  contain  any  ingredient 

'  State  r.  Price,  12  G.  &  J.  260. 

2  Wheeler  r.  State,  42  Md.  563. 

3  James  v.  State,  63  Md.  242. 
M:'ode,  art.  27,  sec.  127. 

'  Gough  V.  Pratt,  9  Md.  526. 

"Code,  art.  27,  sees.  289,  290;  Wheeler  v.  State,  supra. 

"Code,  art.  27,  sec.  133. 

« lb.,  sec  134. 

» lb.,  sec.  135. 

'"lb.,  sec.  136. 


SPECIFIC    OFFENSES— CONTINUED.  155 

that  may  be  deleterious,  injurious  or  poisonous  to  the  con- 
sumer is  nijule  a  misdemeanor,  puinsliable  by  a  fine  of  not 
less  than  lilty  nor  more  than  two  linndre<l  dollars; '  the  ejii- 
ployment  of  children  under  the  age  of  sixteen  years  in 
cotton,  woolen  or  other  manufacturing-  establishments  for 
more  than  ten  hours  in  one  day  is  made  punishable  by  a  fine 
not  exceeding-  fifty  dollars;  =  requiiing  or  permitting  em- 
ployees of  cori>orations  or  individuals  to  work  niore  than 
twelve  hours  during  each  or  any  day  of  twenty-four  hours 
is  made  a  misdemeanor,  punishable  by  a  tine  of  one  hun- 
dred dollars,  and,  in  the  case  of  corporations,  is  also  a  cause 
of  forfeiture  of  the  corporate  franchise; "  the  sale,  barter- 
ing or  giving  away,  by  dealers,  vendors  or  manufacturers, 
of  cigars,  cigarettes,  smoking  or  chewing  tobacco  to  minors 
under  the  age  of  fourteen  years,  unless  i)revionsly  autlior- 
ized  in  writing  by  the  parents  or  guardian,  or  where  a  minor 
is  acting  solely  as  the  agent  of  his  en)ployer,  is  punishable 
by  a  fine  of  not  less  than  ten  nor  more  than  one  hundred 
dollars,  or,  in  default  of  payment,  imi)risonment  in  jail  for 
not  less  than  five  nor  more  than  thirty  days;*  manufactories, 
manufacturing  establishments  and  workshops  are  required 
to  be  kei)t  in  a  sanitary  condition,  under  a  penalty  of  one 
hundred  and  titty  dollars.'  In  the  City  of  Baltimore  it  is 
made  the  duty  of  all  employers  of  females  in  any  mercan- 
tile or  manufacturing  business  or  occupation  to  provide 
and  maintain  suitable  seats  for  the  use  of  such  female 
employees,  and  to  permit  the  use  of  such  seats  by  such 
employees  to  such  an  extent  as  may  be  reasonable  for 
the  pi-eservation  of  their  health,  a  violation  of  this  jyrovi- 
sion  being  a  misdemeanor,  punishable  by  a  fine  of  one 
hundred  and  fifty  dollars.*^ 

§  172. — Heating  Steam  Passenger  Cars. — After  the 
1st  day  of  May,  1890,  steam  railroads  may  uot  heat  their 
passenger  cars  by  any  stove,  or  furnace  kept  inside  the  car 
or  suspended  therefrom,  the  punishment  being  a  penalty 

'  Code,  art.  27,  sees.  137,  138. 

"lb.,  sees.  139-141. 

3  lb.,  sees.  142-144. 

nb.,  sees.  140-147. 

*Ib.,  sees.  148,  149. 

*Code  P.  L.  L.,  art.  4,  sees.  898,  399. 


156  CRIMINAL    LAW. 

of  ooe  thousand  dollars,  upon  conviction,  and  an  additional 
penalty  of  one  hundred  dollars  for  each  day  during  which 
the  violation  shall  continue/ 

§  173. — Importing  Convicts. — Every  commanding  offi- 
cer, captain  or  master  of  any  vessel  who  shall  be  convicted 
of  wilfully  importing  in  such  vessel  into  this  State  from  any 
foreign  country,  and  not  any  part  of  the  TTnited  States, 
any  felon  or  convict  shall  be  sentenced  to  the  Penitentiary 
for  not  less  than  eighteen  months  nor  more  than  five  years." 

§  174. — Incest. — Every  ]>erson  who  shall  knowingly  have 
carnal  knowledge  of  another  person,  being  within  the 
degrees  of  consanguinity  within  which  marriages  are  pro- 
hibited by  the  law  in  this  State,  shall  be  deemed  guilty  of 
felony,  and,  upon  conviction  thereof,  shall  be  punished 
by  imi)risonment  in  tlie  Peniteutiarj'  for  a  term  not  less 
than  one  nor  more  than  ten  years,  in  the  discretion  of  the 
court. ^  Sexual  commerce  between  parties  thus  related  is 
indictable,  whether  under  the  form  of  a  marriage  or  without 
it;*  and  illegitimate  consanguinity  has  the  same  effect  as 
legitimate.^ 

§  175. — Kidnapping. — Every  person,  his  counselors,  aiders 
or  abettors,  who  shall  be  convicted  of  the  crime  of  kidnap- 
ping and  forcibly  or  fraudulently  carrying  or  causing  to  be 
carried  out  of  this  State  any  person,  with  intent  to  have 
such  person  carried  out  of  this  State,  shall  be  sentenced  to 
the  Penitentiary  for  not  less  than  two  nor  more  than  ten 
years.*  Every  person,  his  counselors,  aiders  or  abettors, 
who  shall  be  convicted  of  kidnapping  and  forcibly  or  fraud- 
ulently stealing  or  carrying  away  any  child  under  the  age 
of  sixteen  years,  shall  be  sentenced  to  the  Penitentiary  for 
uot  less  than  five  nor  more  than  twelve  years.' 

§  176. — Larceny. — Larceny  is  defined  to  be  the  taking 
and  removing,  by  trespass,  of  personal  property  which  the 
trespasser  knows  to  belong,  either  generally  or  specially,  to- 

'  Code,  art.  27,  sees,  loO,  151. 

nb.,  sec.  152. 

'lb.,  sec.  153. 

*  Bishop  Stat.  Cr.  I  727. 

^  lb.;  State  r.  Laurence,  95  N.  C.  659. 

«Cocle,  art.  27,  sec.  154. 

"  lb.,  sec.  155. 


Sl'ECU'IC    OFFENSES — rONTINUED.  I.jT 

another,  with  the  intent  to  deprive  sueli  owner  of  the 
ownership  therein.'  Whether  or  not  the  act  must  Ik-  hicri 
cansa,  is  a  question  upon  which  the  authorities  are  not  har- 
monious.- Theort'enseis  felony.  The  irrnn<iful  intent  mwi^X, 
be  tully  shown.  Thus  if  a  i»erson  takes  the  j;oo«ls  oC  an- 
other in  <;oo(l  faith,  under  color  or  claim  of  ri^ht,  no  matter 
Ijow  ill-foun«hMl.  lie  cannot  be  guilty  of  this  offense.^  And, 
if  the  original  taking  i.s  lawful,  a  subsequent  conversion 
with  fraudulent  intent  can  not  be  construed  as  larceny. 
An  instance  of  this  is  to  be  fonnd  in  the  case  of  lost  (/oods. 
If  a  person,  not  knowing  the  owner,  has  taken  them  into 
possession,  he  cannot  afterward,  having  ascertained  who 
the  owner  is,  commit  larceny  of  them.* 

The  penalty  for  the  crime  of  simple  larceny  to  the  value 
of  five  dollars  or  upwards  is  imprisonment  in  the  Peniten- 
tiary for  not  less  than  one  year  nor  niore  than  fifteen  years, 
and,  in  all  cases  where  the  value  of  the  thing  taken  is  less 
than  filty  dollars,  the  court  also  has  discretionary  power  to 
pass  sentence  of  imprisonment  in  jail  or  the  House  of  Cor- 
rection instead  of  the  Penitentiary.^  The  j)enalty  for  lar- 
ceny under  the  value  of  five  dollars,  and  larceny  of  money, 
goods  or  chattels  under  the  value  of  one  dollar  in  any  shop, 
storehouse,  tobacco-house  or  warehouse,  although  the  same 
be  not  contiguous  to  or  used  with  any  mansion  house,  into 
which  the  defendant  has  broken,  is  imprisonment,  in  the 
discretion  of  the  court,  in  the  jail  or  Penitentiary,  not  ex- 
ceeding eighteen  months,*^  liobbery  or  larceny  of  any  obli- 
gation or  bond,  bill  obligatory  or  bill  of  exchange,  bank 
note  or  notes,  promissory  notes  foi-  the  payment  of  money, 
check  or  order  drawn   on  any  bank  in  this  State  or  any 


'  2  Bishop  Cr.  L.  ?  758. 

Ub.,  sees.  842-848.     See  State  v.  Hodges,  55  Md.  127,  186. 
^  lb.,  sec.  851. 

Mb.,  sec.  838;  3  lust.  108;  1  Hale,  506,  507;  People  v.  Cogdell,  1 
Hill,  N.  Y.  94;  People  v.  Andersou,  14  Johns.  294;  Lane  v.  People, 

10  111.  305 :  Porter  r.  State.  :Mart.  &  Y.  226;  State  i:  Long.  1  Hayw. 
N.  C.  157.  u.:  Hunt  c.  Comm.,  13  Gratt.  757:  Tanner  r.  Conini.,  14 
lb.  635;  Reg.  r.  Preston,  5  Cox  C.  C.  390;  Reg.  r.  Dixon.  7  lb.  35; 
Reg.  r.  Shea,  lb.  147;   Reg.  r.  Christopher.  8  lb.  91;   Reg.  r.  Clyde, 

11  lb.  103;  Reg.  /•.  Deaves,  lb.  227;  Reg.  r.  Ash  well,  16  lb..  1;  Reg. 
V.  Flowers,  lb.  33. 

*Code,  art.  27,  sec.  156. 
*Ib..  sec.  157. 


158  CRIMINAL    LAW. 

Other  state,  paper  bill  of  credit,  certificate  granted  by  or 
under  tbe  authority  of  this  State,  or  of  the  Uuited  States, 
or  auy  of  them,  or  of  any  last  will  and  testament,  or  codicil, 
shall  be  punished  in  the  same  manner  as  robbery  or  larceny 
of  goods  and  chattels.^  There  are  special  statutory  provi- 
sions, under  the  title  of  "  Larceny,"  relating  to  buoys,"  corn 
and  willows,^  dogs,*  goods,  wares  and  merchandise  en- 
trusted to  be  manufactured,-'  horses,"  metallic  checks,^ 
pipes,  water  or  gas  fixtures,*  ships'  and  tobacco  plants." 

Where  a  person  steals  goods  in  another  state  and  brings 
them  into  this,  the  act  of  bringing  such  stolen  goods  into 
this  State  is  a  new  larceny  for  which  the  party  may  be  tried 
here." 

The  indictment  need  not  give  a  very  particular  descrip- 
tion of  the  goods  alleged  to  have  been  taken. *^  It  is  suffi- 
ciently certain  to  describe  the  article  as  "  one  hide,"  of 
such  a  value. ^^  The  description  given  in  the  law  which  en- 
acts the  offense,  in  the  case  of  statutory  larcenies,  has  in 
general  been  deemed  sufficient."  But  such  description  must 
be  clearly  given,  and  a  defect  therein  can  not  be  aided  by 
implication.^^  An  allegation  of  value  as  a  certain  number 
of  •'  dollars  and  cents,  current  money,"  or  even,  perhaps, 
only  a  certain  number  of  "dollars  and  cents  "  is  sufficient.^® 
It  is  not  objectionable  to  lay  the  ownership  of  the  goods 
alleged  to  have  been  taken  in  different  persons  in  various 
counts  of  the  same  indictment." 


•Code,  art.  27.  sec.  158. 

=*  lb.,  sec.  159. 

Mb.,  sec.  160. 

*Ib.,  sec.  161. 

*Ib.,  sees.  162,  163. 

«Ib.,  sees.  164,  165. 

'lb.,  sec.  166. 

8 lb.,  sec.  167. 

9  lb.,  sec.  168. 
'•'lb.,  .sec.  169. 

"  Worthington  r.  State,  58  Md.  403. 
•2  State  V.  Scribner,  2  G.  &  J.  246. 
'3  Stater.  Do  well.  3  lb.  310. 

'"  State  V.  Scribuer,  siq^ra;  State  v.  Cassel,  2  H.  &  G.  407. 
'•'  Kearney  v.  State,  48  Md.  16;  Stewart  r.  State,  62  lb.  412. 
i«  Gardner  v.  State,  25Md.  146. 
''State  1-.  McNally,  55  Md.  559. 


SPECIFIC    OFFENSES— CONTINUED.  lo'J 

The  sentence  must  be  in  {u^eordauce  with  statutory 
requirements;  but,  it  a  I kj liter  burden  is  thereby  iuj posed 
iil)on  the  convict  than  the  statute  contemi)lates,  this  affords 
no  jiiound  of  icversni.' 

§  177. — Letters — Wrongfully  Opening. — It  any  person 
whatsoever  shall  picsnmc  to  take  and  break  oi)en  any  letter 
wliatsoever,  not  l)einj''  unto  liini  directed,  or  not  bavin;;- 
special  license  from  the  person  to  whom  the  same  is  di- 
rected, his  executors  or  administrators,  so  to  do,  he  shall, 
on  conviction  thereof,  suffer  imprisonment  for  six  days  and 
be  fined  tilteen  dollars,  one-half  to  the  State  and  the  other 
half  to  the  in  former. - 

If  any  person  shall  Avilfully  break  the  seal  of  any  letter 
or  package  belonging  to  the  public,  he  shall,  on  conviction 
thereof,  be  fined  two  hundred  dollars,  one-half  to  the 
informer  and  tlie  otlier  half  to  the  State.' 

§  17S. — Libel. — A  libel  is  defined  to  be  an}'  rei)resenta- 
tiou,  in  writing,  or  by  pictures,  effigies  or  the  like,  calcu- 
lated to  create  disturbances  of  the  i)eace,  to  corrupt  the 
public  morals,  or  to  lead  to  any  act  which,  when  done,  is 
indictable.*  AVords,  though  not  slanderous  in  themselves, 
if  i)ut  in  writing  and  published  and  tending  in  any  degree 
to  the  discredit  of  a  man,  are  libelous,  when  they  defame  a 
private  person  only,  or  persons  in  public  cai)acity,  in  which 
latter  case  they  are  said  to  receive  an  aggravation,  as  they 
tend  to  scandalize  the  government  by  reflections  on  those 
who  are  entrusted  with  the  administration  of  public  affairs.* 

When  a  man  intentionally  and  personally  publishes  of 
another  nsatter  which  is  libelous,  he  is  held  to  have  malice 
in  law  against  that  other,  whatever  n»ay  have  been  his 
motives  in  fact." 

In  case  any  person  shall  be  prosecuted,  by  indictment  or 
any  other  criminal  prosecution,  for  a  libel,  the  party  so 
prosecuted  shall  be  entitled  to  give  the  truth  of  the  matter 


'  Isaac  r.  State,  23  Md.  410. 

-Code.  art.  27.  sec.  170. 

*Ib.,  sec.  171. 

*  2  Bishop  Cr.  L.  '',.  907. 

^Richardsou  c.  State,  6(»  Md.  20.J. 

^^2  Bishop  Cr.  L.  'i  922;  Richardson  v.  State,  supra. 


100  CRIMINAL    LAW. 

charged  in  the  said  iudictmeiit  or  other  prosecution  in 
evidence,  under  the  general  issue,  by  way  of  justification.* 

§  170. —License  Laws. — Penalties.  —  Under  this  liead 
jjenalties  are  imposed  for  keeping  or  exhibiting  for  use 
billiard  tables  without  a  license,"  disposing  of  merchandise 
witliout  a  "trader's"  license,^  disposing  of  spirituous  or 
lermented  liquors  or  lager  beer  without  a  license,*  selling 
or  bartering  liquor  to  minors  or  to  other  persons,  if  the 
same  is  to  be  drunk  by  minors.^  Special  provisions  also 
obtain  in  relation  to  "oyster-house  "  licenses''  and  ordinary 
and  inn  keepers  and  retailers.' 

All  the  acts  of  Assembly  relating  to  licenses  form  one 
entire  system  and  njust  be  construed  together.* 

Where  a  trader  or  keeper  of  an  ordinary  whose  license 
has  expired  discontinues  his  business,  he  ma^^,  without 
renewing  his  license,  sell  and  dispose  of  his  chattels,  in- 
cluding his  stock  of  goods  remaining  on  hand." 

In  prosecutions  for  violations  of  these  laws,  especially  in 
relation  to  the  sale  of  liquors,  evidence  may  be  introduced 
to  show  the  real  nature  of  a  transaction  of  the  accused, 
wherever  disguise  or  evasion  is  resorted  to.*" 


'  Code,  art.  75.  sec.  15. 

As  to  foini  of  iadictineat ,  see  Richardson  v.  State,  66  Md.  205. 

-Code,  art.  56,  sec.  9;  Germania  r.  State.  7  Md.  1;  ScoUy  v.  State, 
23  lb.  IX:  Schmetzer  c.  State,  63  lb.  420. 

^  Code,  art  56,  sees.  35-54,  85,  88,  89. 

Where  a  trader's  license  is  taken  out  by  a  partnership,  and  one  of 
the  partners  assigns  his  interest  to  his  associate  and  retires  from  the 
firm,  the  business  may  be  continued  by  the  remaining  partner  under 
the  same  license.     Spielman  v.  State,  27  Md.  530. 

•*Code,  art.  56,  sees.  55-66,  84,  85,  88,  89. 

*  lb.,  sec.  86. 

A  licensed  dealer  cannot  escape  the  penalty  of  this  offense  by 
proving  that  the  sale  was  made  by  his  barkeeper,  during  his  absence, 
without  his  knowledge  and  contrary  to  his  instructions,  given  in 
good  faith.     Carroll  v.  State,  63  Md.  551 ;  ante,  'i  20. 

The  minor  himself  is  a  competent  witness  to  prove  his  own  age. 
Pearce  v.  Kyzer,  84  Tenn.  521. 

"Code,  art.  56,  sees.  82,  83;  State  v.  Cahen,  35  Md.  236. 

"Code,  art.  71:  Downs  v.  State,  19  Md.  571. 

^  Spielman  r.  State,  supra. 

^Forvvood  r.  State,  49  Md.  531. 

'"  Archer  r.  State,  45  Md.  33. 

Aa  to  form  of  indictment.,  see  Spielman  v.  State,  supra. 


specifk;  offenses — continued.  161 

§  180. — Lotteries. — All  sales,  diawiiigs,  (loaliii<?s  and 
contri\'aiices  ol  cvciy  (k'sciiiition  in  the  nature  of  lotteries 
and  ail  advertisements  in  relation  thereto  are  prohiiiited  by 
statute.'  The  form  of  the  indictment  and  the  matter  of 
amending  the  same  are  also  the  subject  of  statutory  regu- 
lation.= 

Under  an  indictment  charging  the  traverser  with  having 

sold  a  lottery  ticket,  evidence  that  he  had  sold,  to  the 
person  named  in  the  indictment,  pieces  of  pa[)er,  conjmouly 
known  as  "policies,"  that  entitled  the  j)urchaser  to  receive 
a  specified  sum  of  money  on  the  happening  of  the  contin- 
gency of  certain  numbers  being  drawn  in  a  lottery  of  the 
same  date,  was  held  to  be  admissible.^ 


'  Code,  art.  27,  sees.  173  186. 

-  lb.,  sees.  2S9,  290;  State  c.  Scribner,  2  G.  &  J.  246. 

'Smith  r.  State,  68  Md.  168. 


11 


CHAPTER  XV. 

Specific  Offenses,  Continued. 

§  181, — Maiming. — Mayhem,  at  eoinnioii  law,  is  defined 
to  be  "  a  hurt  of  any  part  of  a  man's  body  whereby  lie  is 
rendered  less  able,  in  fighting,  either  to  defend  himself  or 
annoy  his  adversary."^  The  grade  of  the  offense  is  doubt- 
ful." The  penalty  for  the  oflense  of  mayhem,  or  of  tarring 
and  feathering,  is  imprisonment  in  the  Penitentiary  for  not 
more  than  ten  years  nor  less  than  eighteen  months.^  Vari- 
ous kindred  oflenses  are  enumerated  and  their  punishment 
prescribed  by  statute.*  In  indictments  for  these  statutory 
offenses,  the  description  must  follow  the  language  of  the 
statute  and  the  defendant  must  be  brought  within  all  the 
material  words  thereof. ■' 

§  182. — Malfeasance  in  Office. — Any  act  or  omission, 
in  disobedience  of  ofiicial  duty,  by  one  who  has  accepted 
public  ofUce,  is,  when  of  public  concern,  in  general,  pun- 
ishable as  a  crime. ^  When  the  act  in  question  is  that  of 
judicial  officers,  all  that  the  law  can  secure  is  a  guarantee 
that  they  shall  not,  with  impunity  do  wrong  wilfully,  fraud- 
ulently or  corruptly.  If  they  do  so  act,  they  are  liable, 
both  civilly  and  criminally;  but  forerrorsof  judgment  they 
are  not  liable,  either  civilly  or  criminally.'  A  justice  of  the 
peace,  having  discharged  a  prisoner  brought  before  him, 
charged  with  the  larceny  of  certain  bank  notes  and  })rom- 
issory  nores,and  having  refuse<l  to  deliver  the  same,  which 
he  had  taken  from  the  prisoner,  when  on  examination,  to  a 
third  person,  to  whom  the  prisoner  had  assigned  them,  an  in- 
dictment was  found  against  the  justice  of  the  peace,  charg- 

>2  Bishop  Cr.  L.  ^^001. 

Mb.,  'i  1008. 

^Code.  art.  27,  sec.  187. 

nh.,  sees.  188.  189. 

^ State  V.  Elborn,  27  Md.  488. 

«  1  Bishop  Cr.  L.  'i  459;  Martin  v.  State,  1  H.  &  J.  721. 

'  Bevard  v.  Hoflfmau,  18  Md.  479. 


SPECIFIC   OFFENSES,    CONTINUED.  163 

inff  that  lie,  at  such  a  time  and  place,  heing  then  and  there  a 
justice  of  the  peace,  uiiliiwfnlly,  wilfully,  oppressively,  cor- 
ruptly and  in  violation  and  coiitcriipt  of  his  duty  as  justice 
of  the  peace,  neglected  and  reiuscd  to  deliver  the  said  bank 
notes  and  i)roinissory  notes  to  the  said  i)erson  to  whom 
they  had  been  assigned,  being  then  and  there  requested  so 
to  do,  well  knowing  that  he  was  entitled  to  receive  the 
same.  It  was  held,  that  the  lacts  alleged  constituted  an 
indictal)le  (►ffense,  and  that  it  was  immaterial  whether  the 
hiw  imposed  upon  the  magistrate  the  duty  to  receive  the 
property  oi-  not — it  having  been  received  by  him  colore  officii, 
if  not  virtnte  officii,  there  could  be  no  doubt  as  to  Lis  legal 
obligation  to  restore  it  to  the  person  entitled.' 

§  18;i. — Manslaughter. — Homicide  is  the  killing  of  a 
human  being  by  a  human  being.  A  child  beconu's  a  human 
being,  within  this  detinition,  when  it  has  completely  pro- 
ceeded in  a  living  state  fnun  the  body  of  its  mother, 
whether  it  has  or  has  not  lueathed,  and  whether  the 
umbilical  cord  has  or  has  not  been  severed,  and  the  killing 
of  such  a  child  is  homicide,  whether  it  be  killed  by  injuries 
inflicted  before,  during  or  after  birth.-  As  a  general  propo- 
sition, he  whose  act  causes,  in  any  way,  directly  or  indi- 
rectly, the  death  of  another,  kills  him,  w  ithm  the  law  of 
homicide.^  If  a  man,  in  doing  what  the  law  neither  requires 
nor  forbids,  or  in  strictly  i)erforming  a  legal  duty,  and  ex- 
ercising such  care  as  the  circumstances  demand, causes  the 
death  of  another,  he  commits  no  offense;  but,  if  he  is  doing 
something  which  the  law  does  not  command,  of  a  sort  en- 
dangering life — or,  if,  in  the  [)erformauce  of  a  legal  duty, 
he  is  grossly  careless,  in  a  way  to  put  life  in  jeojtardy. — or 
if  he  is  committing  some  breach  of  the  criminal  laws  which 
is  malum  in  sc — or  if  he  is  neglecting  a  legal  duty,  where 
the  neglect  endangers  life, — he  then  becomes  guilty  of  a 
felonions  homicide,  should  death,  whether  intended  or  un- 
iutended,  result  within  a  year  and  a  day/ 

'  Hiss  r.  State.  24  Md.  556. 

As  to  prosecutions  for  raisconduct  of  officern  of  regvit ration ,  see 
Miiicher  v.  State.  (56  Md.  227. 

^Steplieu  Dig.  Cr.  L.,  art.  218-.  2  Bisliop  Cr.  L.  U  632,  633. 
=•2  Bishop  (Jr.  L.  U  635-641. 
*  lb.,  'i  656. 


164  CRIMINAL   LA.W. 

Felonious  homicides  are  divided  into  murder  and  raau- 
slaugliter,  wliicli  are  regarded,  not  as  different  degrees  ot 
the  same  offense,  but  as  separate  crimes/  Manslaughter 
is  unlawful,  or  ielonious,  homicide  without  mali(!e  afore- 
thought, ^[urder  is  unlawful,  or  felonious,  homicide  with 
malice  aforethought.'- 

The  legal  meaning  of  malice  aforethought  in  cases  of 
homicide  is  not  confined  to  homicide  committed  in  cold 
blood,  with  settled  design  and  premeditation,  but  extends 
to  all  cases  of  homicide,  however  sudden  the  occasion, 
when  the  act  is  done  with  such  cruel  circumstances  as  are 
the  ordinary  symptoms  of  a  wicked,  depiaved  and  malig- 
nant spirit.* 

Every  person  convicted  of  the  crime  of  manslaughter 
shall  be  sentenced  to  the  Penitentiary  for  not  more  than 
ten  years,  or,  in  tlie  discretion  of  the  court,  may  be  tined 
not  more  than  five  hundred  dollars,  or  be  imi)risoned  in 
jail  for  not  nu)re  than  two  years,  or  be  both  fined  and  im- 
prisoned in  jail.* 

§  184. — Marrying  Unlawfully. — Under  this  title  vari- 
ous acts  in  relation  to  marriages  are  prohibited  and  penal- 
ties prescribed  therefor.^ 

§  185. — Mineral  Waters,  Porter  and  Other  Bever- 
ages.— The  i)r<)visions  under  tliis  title  are  designed  for  the 
protection  of  bottlers  and  dealers  in  beverages  in  the  ex- 
clusive use  of  certain  boxes  and  vessels,  a  description  of 
which  has  been  recorded  by  them.* 

§  180. — Minors — Care  and  Protection  of. — Every  agent, 
officer  or  lepresentative  of  any  institution,  society  or  body, 
incorj)orated  under  the  laws  of  this  State,  for  the  care, 
custody  or  protection  of  children  or  minors,  having  in  his 
possession,  custody  or  personal  charge  any  minor,  or  person 
under  twenty-one  years  of  age,  for  any  purpose  connected 
with  the  objects  of  such  institution,  society  or  body,  shall 

'  Weighoist  V.  State,  7  Md.  442,  451. 
=* Stephen  Dig.  Cr.  L.,  art.  223. 

3  U.  S.  V.  Cornell,  2  Mason,  91 ;  Comm.  i:  Webster,  5  Cusb.  295,  306, 
307,  308;  Nye  r.  People,  35  Mich.  16. 
^Code,  art.  27,  sec.  190. 
nb.,  sees.  191-200. 
«Ib.,  sees.  201-207. 


SPECIFIC    OFFENSES,    CONTINUED.  105 

be  entitled  to  all  the  privileges  and  authority  of  a  con- 
servator of  the  peace  ;  and  any  person,  whether  under  the 
claim  or  color  of  authority  over  the  person  of  such  minor, 
as  parent,  guardian  or  otherwise,  or  under  any  other  color, 
pretense  or  claim,  who  shall,  in  any  manner,  interfere  with 
or  obstruct  such  agent,  oflicer  or  representative,  in  re- 
lation to  his  possession,  custody  or  j)ersonal  charge  of 
such  minor,  shall  be  guilty  of  a  misdemeanor;  and  it  shall 
be  the  duty  of  all  oflic^ers  of  the  police,  policemen,  constables 
and  otticers  and  oHicials  of  every  description  having  the 
authority  to  make  arrests  to  enforce  this  section  in  every 
particular.' 

It  shall  be  unkiwful  for  any  i)erson,  b»i  he  [a]  licensed 
dealer  or  not,  to  sell,  barter  or  give  away  any  firearms 
whatsoever  or  other  deadly  weapons,  except  shot  guns, 
fowling  pieces  an<l  ritles,  to  any  minor  under  the  age  of 
twenty-one  years.  Any  i)erson  violating  this  section  shall, 
on  conviction  thereof,  jiay  a  tine  of  not  less  than  fifty 
nor  more  than  two  hundred  dollars,  together  with  the  costs 
of  prosecution,  and,  upon  failure  to  pay  said  fine  and  costs, 
shall  be  committed  to  jail  and  confined  therein  until  such 
fine  and  costs  are  paid,  or  for  the  i)eriod  of  sixty  days, 
whichever  shall  first  occur.- 

Tn  the  City  of  Baltimore  it  is  unlawful  for  any  person 
having  a  permit  or  license  to  erect  or  keep  a  billiard  saloon 
or  billiard  table  to  allow  any  minor  to  play  at  any  game  in 
such  saloon  or  on  any  billiard  table,  under  the  penalty  of 
ten  dollars  for  the  first  oflense  and  twenty  dollars  for  every 
subsequent  offense.*  It  has  been  held  that,  in  such  cases, 
a  conviction  may  be  had  without  i)roving  that  the  keeper 
of  tln^  saloon  knew  of  the  presence  of  the  minor  or  of  the 
fact  of  his  minority.^ 

Pawnbrokers  in  the  City  of  Baltimore  are  prohibited 
from  receiving  dejiosits  from  any  minor  or  apprentice, 
knowing  him  to  be  such.^ 


'  Code,  art.  27,  sec.  20S. 

-lb.,  sec.  209. 

'  Baltimore  City  Code.  art.  33,  sec.  4  (Ordinances.) 

^  State  r.  Probasco,  62  Iowa,  400;  ante.  I  20. 

'Baltimore  City  Code,  art.  33,  sec  32  (Ordinances.) 


TOO  CRIMINAL   LAW. 

§  187. — Murder. — Murder  is  uulawful,  or  felonious,  homi- 
cide with  malice  aforetboiiftht.^ 

All  murder  which  shall  be  perpetrated  by  means  of 
poison,  or  lying  in  wait,  or  by  any  kind  of  wilful,  deliberate 
and  premeditated  killing  shall  be  murder  in  the  first  degree.^ 

All  murder  which  shall  be  committed  in  tlie  perpetration 
of  or  attempt  to  i)erpetrate  any  arson  shall  be  murder  in 
the  first  degree.^ 

All  murder  which  shall  be  committed  in  the  burning  or 
attemi)tiug  to  burn  any  barn,  tobacco  house,  stable,  ware- 
house or  other  outhouse,  not  parcel  of  any  dwelling  house, 
having  therein  any  tobacco,  hay,  grain,  horses,  cattle, 
goods,  wares  or  merchandise,  shall  be  murder  in  the  first 
degree.* 

All  jnurder  which  shall  be  committed  in  the  perpetration 
of  or  attempt  to  perpetrate  rape,  sodomy,  mayhem,  robbery 
or  burglary  shall  be  murder  in  the  first  degree.'' 

All  other  kinds  of  murder  shall  be  deemed  murder  in  the 
second  degree.*^ 

And  the  jury  before  whom  any  person  indicted  for 
murder  shall  be  tried  shall,  if  they  find  such  person  guilty 
thereof,  ascertain  in  their  verdict  whether  it  be  murder  in 
the  first  or  second  degree  ;  but,  if  such  person  be  convicted 
by  confession,  the  court  shall  proceed,  by  examination  of 
witnesses,  to  determine  the  degree  of  the  crime  and  to  give 
sentence  accordingly  ;  and  every  person  liable  to  be  prose- 
cuted for  petit  treason  shall,  in  future,  be  indicted,  pro- 
ceeded against  and  punished  as  is  directed  in  other  kinds 
of  murder,  according  to  the  degree.'' 

Every  person  convicted  of  murder  in  the  first  degree, 
his  or  her  aiders,  abettors  and  counsellors  shall  suffer 
death.' 


^  See  ante,  'i  183. 

2  Code,  art.  27,  sec.  210. 

^  lb.,  sec.  2il. 

■♦lb.,  sec.  212. 

»Ib.,  sec.  213. 

«Ib.,  sec.  214. 

As  to  death  caused  by  obstruction  of  railroads,  see  post,  ?  195. 

"lb.,  sec.  215. 

3 lb.,  sec.  316. 


SPECIFIC   OFFENSES,    CONTINUED.  167 

Every  person  convicted  of  the  crime  of  nuirdcr  in  tlie 
second  degree  or  as  accessory  tliereto  shall  be  sentenced  to 
the  Penitentiary  for  not  less  than  live  nor  more  than 
eifjhteen  years/ 

In  an  indictment  for  mnrder  it  is  not  necessary  to  aver 
the  circumstances  which  determin«^  the  degree  as  deliiied 
by  the  statute  above  quoted.  The  object  of  this  legislation 
was  the  mitigation  of  the  punishment  in  cases  of  the  second 
degree;  there  was  no  design  to  change  the  form  of  the 
pi  e  ad  in  g.- 

In  a  trial  for  murder,  the  State  may  i)rove,  as  bearing 
upon  the  (piestion  of  malice,  that,  on  the  day  before  the 
fatal  assault  and  several  days  prior  thereto,  the  prisoner 
had  beaten  and  otherwise  maltreated  the  deceased,  and 
may  follow  up  this  evidence  and  show,  that,  prior  to  the 
assault,  the  deceased  was  in  ordinary  health  and  that  after- 
ward he  complained  of  pains  in  his  head  and  breast  and 
that  he  continued  to  complain  up  to  the  day  of  the  homi- 
cide, such  evidence  as  to  the  physical  condition  of  the  de- 
ceased at  the  time  when  the  injuries  were  inflicted  aid- 
ing in  the  determination  of  the  question  of  his  having  died 
from  the  ert'ects  of  such  injuries.^  The  mere  fact  that  a 
post  mortem  examination  is  made  some  time  after  death  is 
not  in  itself  a  reason  whv  the  result  of  such  examination 
should  be  excluded,  uuless  the  interval  is  so  great  and  the 
condition  of  the  body  such  that  the  jury  could  not  reason- 
abl}'  find  whether  its  condition  was  to  be  attributed  to  ante 
mortem  or  j^ost  mortem  causes.*  On  a  trial  for  murder,  evi- 
dence of  what  occurred  at  a  saloon  half  a  block  removed 
from  another  saloon  where  the  homicide  occurre«l  and  only 
four  or  live  n)inutes  before  the  killing  is  admissible  to  show 
the  movements  and  general  conduct  of  the  i)risoner  imme- 
<liately  preceding  the  killing  and  that  he  was  armed  and 
prepared  for  mischief  and  in  a  frame  of  mind  likely  to  re- 
sult in  mischief.  • 

'Code,  art.  27,  sec.  217. 
-Davis  V.  State,  39  Md.  355. 

^  Williams  r.  State,  64  Md.  384.     As  to  admissibility  of  evidence  of 
statements  of  deceased,  see  Reg.  r.  Gloster.  16  Cox  C.  C.  471. 
^Ib. 
*  Kernan  v.  State,  65  Md.  253. 


168  CRIMINAL    LAW. 

Ill  the  kind  of  murder  in  the  first  degree  described  as 
"wilful,  deliberate  aud  premeditated"  there  must  be  the 
fully  formed  purpose  to  kill,  \Anth  so  much  time  for  delibera- 
tion and  premeditation  as  to  convince  the  jury  that  this 
purpose  is  not  the  immediate  offs])ring  of  rashness  and  im- 
petuous temper  and  that  the  mind  has  become  fully  con- 
scious of  its  own  design.* 

The  form  of  the  verdict  upon  indictments  for  homicide  is 
discussed  in  another  part  of  this  work.^ 

§  188.  — Negroes — Fornication  With. — Any  white  wo- 
man who  shall  suffer  or  i)ermit  herself  to  be  got  with  a 
child  by  a  negro  or  mulatto,  upon  conviction  thereof  in  the 
court  having  criminal  jurisdiction,  either  in  the  city  or 
county  where  such  child  was  begot,  or  where  the  same  was 
born,  shall  be  sentenced  to  the  Penitentiary  for  not  less 
than  eighteen  months  nor  more  than  five  years.* 

§  189. — Nuisance. — A  public  or  common  nuisance  is  any 
act  or  neglect  the  product  of  which  works  an  annoyance  or 
injury  to  the  entire  community.*  The  evil  must  be  of  mag- 
nitude requiring  judicial  interposition  and  within  the 
reasons  on  which  the  decisions  of  the  courts  have  in  times 
past  proceeded;  or,  the  offense  may  be  created  and  defined 
by  statute."  The  grade  of  the  offense  at  the  common  law 
is  misdemeanor.  Obstructing  a  public  road  is  an  indict- 
able nuisance,*  also  the  carrying  on  of  an  offensive  trade,' 
non-repair  of  its  road  by  a  railway  company,*  and  the 
keeping  of  a  bawdy  or  other  disorderly  house.'  No  such 
thing  as  prescription  can  be  set  up  as  a  defense  to  an  iii- 


'  Comm.  r.  Drum,  58  Pa.  St.  9. 

-Ante,  \  115. 

'Code.  art.  27.  sec.  218. 

n  Bishop  Cr.  L.  \  1072. 

"State  V.  Price,  21  Md.  448. 

"Horner  r.  State,  49  Md.  277:  Clayton  c.  State,  60  lb.  272;  State  r. 
Mott,  61  lb.  297. 

*Balto.  &  Yorktown  Road  r.  State,  63  Md.  573. 

■•Henson  /•.  State,  62  Md.  231;  S.  C,  50  Am.  Rep.  204;  S.  C,  5  Crim. 
L.  Mag.,  693. 

Leasing  to  another  a  house  with  the  intent  of  its  being  used  as  a 
common  bawdy  house  is  also  an  offense  indictable  at  common  law. 
Smith  r.  State,  6  G.  425. 


SPErrFTf"    OFFENSES,    CONTINUED.  M}9 

(lictmeiit  lor  inaintaininj?  a  public  nuisance.^  When  the 
indictment  has  the  necessary  allegations  and  is  sustained 
b}'  the  proofs,  the  final  jiidunient  of  the  court  may  contain 
an  order  that  the  (b'I'endiuir  almle  the  nuisance. - 

§  lUO. — Obscene  Publications. — Whenever  any  news- 
pai)er  or  periodical  publication  contains  any  obscene  or 
licentious  matter,  every  proprietor  and  publisher  is  guilty 
of  a  misdemeanor,  and  liable  to  a  fine  of  not  less  than 
twenty  nor  more  than  two  hundred  dollars  and  im[)rison- 
ment  for  not  less  than  ten  days  nor  more  than  one  year; 
and  each  successive  number  of  any  newspai)er  or  periodical 
containing  such  obscene  or  licentious  matter  is  deem<Ml  to 
be  a  new  publication  thereof.' 

Any  person  who,  in  any  way,  produces  or  causes  to  be 
produced  any  print  or  rei)resentation  of  an  indecent  or  im- 
moral nature,  or  sells,  gives  away,  distributes,  i)osts  nj)  or 
exhibits  to  the  public  or  an  individual  any  such  print  or 
representation,  or  causes  this  to  be  done,  isguilty  of  a  mis- 
demeanor, ])unishable  by  a  fine  of  not  less  than  twenty  nor 
more  than  two  hundred  dollars  and  imprisonment  for  not 
less  than  ten  days  nor  more  than  one  year.* 

In  an  indictment  for  i)ublishing  obscene  and  licentious 
matter,  the  obscene  character  of  which  is  only  disclosed 
by  explanatory  words  and  innuendoes,  it  is  necessary  to 
aver,  that  it  was  so  known  and  understood  by  the  person 
charged  with  its  publication.  The  indictment  should  con- 
tain an  express  allegation  of  such  guilty  knowledge  or 
something  equivalent  to  it.  In  all  cases,  where  the  true 
character  and  moaning  of  a  i)ublication  are  to  be  gathered 
from  extrinsic  facts  and  circumstances,  these  are  to  be  set 
out  in  the  indictment  by  way  of  introductory  averments 
iand  explanatory  innuendoes.* 

§  11)1. — Opium  Joints. — All  persons  instrumental  in  pro- 
viding the  means  lor  smoking  or  using  opium,  or  leasing, 
renting  or  permitting  i>remises  to  be  so  used,  or  not  giving 


'  P.  W.  &  B.  R.  R.  r.  State,  20  Md.  157. 
'  1  Bishop  Cr.  L.  'i  1079;  Wioe  v.  State.  S  Md.  416. 
» Code,  art.  27,  sec  219. 

^Ib.,  sec.  3'20.     As  to  the  legal  test  of  "  iudecency,""  see  11  Crini. 
L.  Mag.  121. 

^Nicholson  v.  State,  36  Md.  XE. 


170  CRIMINAL   LAW. 

inlormation,  if  their  premises  are  so  used,  or,  in  any  man- 
ner, soliciting  or  causing  others  to  visit  such  places  or  to 
use  oi)ium,  or  exhibiting-  apparatus,  devices  or  instruments 
for  smoking  or  using  opium,  or  participating  in  such  ex- 
hibition are  guilty  of  a  misdemeanor;  and  provision  is  made 
for  searching  premises  and  seizing  and  destroying  appa- 
ratus; but  this  legislation  does  not  apply  to  druggists  or 
physicians,  or  others  engaged  in  the  legitimate  use  or  sale 
of  opium. ^ 

§  19ii. — Oysters. — Various  penal  provisions  in  relation 
to  oysters,  their  destruction,  measuring  them,  the  time  of 
taking  them  are  to  be  found  in  the  Code  of  Public  General 
Laws,'  and  this  legislation  has,  on  a  number  of  occasions, 
been  the  subject  of  judicial  interpretation.  The  decisions 
will  be  found  collected  in  a  note.' 

^  19;',. — Perjury. — Perjury,  at  the  common  law,  is  defined 
to  be  the  wilful  giving,  under  oath,  in  a  judicial  proceed- 
ing or  course  of  justice,  of  false  testimony  material  to  the 
issue  or  point  of  inquiry.* 

An  oath  or  affirmation,  if  made  wilfully  and  falsely,  in 
any  of  the  following  cases,  shall  be  deemed  perjury:  first, 
in  all  cases  where  false  swearing  would  be  perjury  at  com- 
mon law;  secondly,  in  all  affidavits  required  by  law  to  be 
taken;  thirdly,  all  affidavits  to  accounts  or  claims  made  for 
the  purpose  of  inducing  any  court  or  officer  to  pass  such 
accounts  or  claims;  fourthly,  all  affidavits  required  to  be 
made  to  reports  and  returns  made  to  the  General  Assembly 
or  any  officer  of  the  government.^ 

Any  person  who  shall  procure  another  to  make  a  false  oath 
or  affirmation  in  any  of  the  cases  embraced  in  the  preced- 


'  Code,  art.  27,  sees.  221-225. 

^Art.  72. 

'Destroying  oysters— State  v.  Mister,  o  Md.  11.  Bedding  of 
oysters— Phipps  r.  State,  22  Md.  380.  Disposing  of  oysters  by  heap- 
ing measure— McGrath  r.  State,  46  Md.  631.  Carrying  oysters  with- 
out license— State  v.  Insley,  64  Md.  28.  Dredging  beyond  prescribed 
limits— Jones  v.  State,  68  Md.  613. 

"2  Bishop  Cr.  L.  'i  1015. 

5  Code,  art.  27,  sec.  226;  Deckard  v.  State,  38  Md.  186;  State  v. 
Bixler,  62  lb.  3.54. 


SPECIFIC    OFFENSES,   CONTINUED.  171 

ing  section  sliall  be  deemed  guilty  of  suboruatioii  of  j)er- 
jnrv.' 

In  indictments  for  perjury  it  is  sutficient  to  set  forth  the 
substance  of  the  offense  charged  upon  the  defendant  and 
by  what  court  or  before  wliom  the  oath  was  taken,  aver- 
ring such  court  or  person  or  persons  to  liave  a  competent 
autliority  to  administer  the  same,  together  with  the  proper 
averment  or  averments  to  falsify  tli<-  matter  or  matters 
wherein  the  perjury  or  ])erjuries  is  or  are  assigned,  with- 
out setting  forth  the  bill,  answer,  information,  indictment, 
declaration  or  any  part  of  any  record  or  proceeding,  either 
in  law  or  equity,  other  than  as  aforesaid,  and  without  set- 
ting forth  the  commission  or  authority  of  the  court  or  per- 
son or  persons  before  whom  the  perjury  was  committed. - 

In  informations  or  indictments  for  subornation  of  i)er- 
jury,  or  for  corrupt  bargaining  or  contracting  with  others 
to  commit  wilful  and  corrupt  perjury,  it  is  sufficient  to  set 
forth  the  substance  of  the  offense  charged  upon  tlie  defend- 
ant, without  setting  forth  the  bill,  answer,  information,  in- 
dictment, declaration  or  any  part  of  the  record  or  proceed- 
ing, either  in  law  or  equity,  and  without  setting  forth  the 
€ommission  or  authority  of  the  court  or  person  or  persons 
before  whom  the  perjury  was  committed,  or  was  agreed  or 
promised  to  be  committed.^ 

Every  person  who  shall  be  convicted  of  the  crime  of  per- 
jury or  subornation  of  perjury  shall  be  sentenced  to  undergo 
a  continement  in  the  Penitentiary  for  not  less  than  five  nor 
more  than  ten  years.* 

§  194. — Poison — Attempting  To.  —  Every  person,  his 
aiders,  a<lvisors  or  abettors,  who  shall  be  convicted  of  tlie 
crime  of  attempting  to  poison  any  person  shall  be  sentenced 


'  Code,  art.  27,  sec.  227. 

Subornation  of  perjury  is  the  procuring  of  a  man  to  take  a  false 
oatli  ani(  uuting  to  perjury,  the  person  procured  or  incited  ocfiiaUi/ 
tcikiny  tlie  oath:  but  bargaining  witii  or  iucitiug  a  person  to  commit 
perjury,  though  the  oath  be  not  taken,  is  also  an  offeiise  at  common 
law.     2  Bishop  Cr.  L.  i  1197. 

-Stat.  23  Geo.  3,  ch.  11,  sec.  1;  Alexander  Br.  Stat.  766:  Deckard 
r.  State,  38  Md.  186. 

3  Stat.  23  Geo.  3,  ch.  11,  sec.  2;  Alexander  Br.  Stat.  766. 

"Code,  art.  27,  sec.  228. 


172  CRIMINAL   LAW. 

to  undergo  a  coutineuieut  in  the  Penitentiary  tor  not  less 
tlian  two  nor  more  than  ten  years.^ 

§  195. — Railroads — Obstructing. —  If  any  person  shall 
place  anything  or  cause  anything  to  be  placed  on  any  rail- 
road in  this  State,  calculated  to  obstrnct,  overthrow  or 
direct  from  the  track  of  such  railroad  any  car,  vehicle  or 
carriage  traveling  or  passing  on  such  railroad,  or  shall 
break  or  injure,  in  any  manner,  any  railroad  in  this  State^ 
with  the  view  or  intent  to  obstruct  or  overthrow  any  car, 
vehicle  or  carriage,  such  person  so  offending  shall  be  deemed 
guilty  of  a  felonj'^  and,  upon  conviction  thereof,  shall  be 
sentenced  to  the  Penitentiary  for  not  less  than  two  years 
nor  more  than  ten  years.^ 

If  the  death  of  any  person  shall  be  occasioned  by  the 
overthrow  or  obstruction  of  any  railroad  car,  vehicle  or 
carriage,  produced  by  the  placing  of  any  thing  or  obstruc- 
tion on  any  raih^oad,  or  by  breaking  or  injuring  any  rail- 
road or  any  bridge  attached  thereto,  in  violation  of  the 
preceding  section,  then  the  person  so  placing  the  things 
or  obstructing,  or  breaking  or  injuring  shall  be  deemed 
guilty  of  murder.^ 

^  196. — Rape. — Rape  is  the  unlawful  carnal  knowledge 
by  a  man  of  a  woman  forcibly  and  against  her  will.*  The 
grade  of  the  offense  is  felony.  A  boy  under  fourteen  years 
is  conclusively  presumed  to  be  incapable  of  committing  the 
otteuse,  whatever  be  the  real  fact.*  The  offense  may  be 
committed  upon  a  female  of  any  age  provided  actual  force 
be  used;*^  and,  even  though  no  force  be  used,  it  is  provided 
by  statute,  that,  if  any  person  shall  carnally  know  and 
abuse  any  woman  child  under  the  age  of  ten  years,  every 
such  carnal  knowledge  shall  be  deemed  felony,  and  the 
offender,  being  convicted  thereof,  shall,  at  the  discretion 
of  the  court,  suffer  death  or  undergo  a  confinement  in  the 
Penitentiary  for  not  less  than  eighteen  months  nor  more 


'  Code,  art.  ^7,  sec.  229. 

2  lb.,  sec.  230. 

'lb.,  sec.  231. 

"  2  Bishop  Cr.  L.  \  1113.     Cf.  (3  Crim.  L.  Mag.  220. 

•'lb.,  I  1117;  3  Greenl.  Ev.  'i  %Vi\  1  Wharton  Cr.  L..  8  ed.,  \  551. 

«2  Bishop  Cr.  \^.\  1118. 


«PECiriC    OlFENSES,   CONTINUED.  17.5 

than  twonfy-one  years.'  The  word  "abuse  "in  this  eon- 
iiection  ajtplies  to  injuries  to  tlie  genital  organs  and  does 
not  include  ill  usajie.-  The  consent  of  the  ciiild  in  such 
cases  is  immaterial,^  and  the  fact  that  the  defendant 
believed,  no  matter  upon  what  giounds,  that  the  child 
was  over  the  statutory  age  attords  no  defense  or  excuse.^ 
The  child  may  be  a  witness  as  to  her  own  age."^ 

p]very  jx'rson  convicted  of  the  crime  of  iai)e.  or  as  being 
accessory  thereto  before  the  fact,  shall,  at  the  discretion 
of  the  court,  suti'er  death  or  undei'go  a  continement  in  the 
Penitentiary  for  not  les.s  than  eighteen  months  nor  more 
than  twenty-one  years;  and  penetration  shall  be  evidence 
of  rape,  without  proof  of  emission." 

§  197. — Receiving  Stolen  Goods,  Money  or  Securities. 
— Every  person  wiio  shall  be  convicted  of  the  crime  of  re- 
ceiving any  stolen  money,  goods  or  chattels,  knowing  the 
same  to  be  stolen,  or  of  the  crime  of  receiving  any  bond, 
bill  obligatory,  or  bill  of  exchange,  promissory  note  for  the 
payment  of  money,  bank  note,  paper  bill  of  credit,  ceititi- 
cate  granted  by  or  under  the  authority  of  this  State,  or  of 
the  United  States,  or  any  of  them,  knowing  the  same  to  be 
stolen,  shall  restore  such  money,  goods  or  chattels,  or  thing- 
taken  and  received,  to  the  owner  thereof,  or  make  restitu- 
tion to  the  value  of  the  whole,  or  such  part  as  shall  not  be 
restored,  and  shall  undergo  a  confinement  in  the  Peniten- 
tiary for  not  less  than  eighteen  months  nor  more  than  ten 
years:  and  such  receiver  may  be  prosecuted  and  punished, 
although  the  i)rincipal  offenders  shall  not  have  been  con- 
victed." 


'  Code,  art.  27,  sec.  233. 

-Davvkins  r.  State.  58  Ala.  376;  S.  C,  29  Am.  Rep.  754;  State  i: 
Ellis,  74  Mo.  385;  State  v.  Woolaver.  77  lb.  103. 

*  State  r.  Willoughby,  7(i  Mo.  215;  State  r.  Joues,  Ki  Kans.  Oil. 

■•  Bishop  Stat.  Cr.,  i>  490. 

•'Weed  r.  State.  55  Ala.  13;  Hill  r.  Eldridge.  126  Mass.  234.  Cf. 
Bain  v.  State.  61  Ala.  75;  Cherry  i\  State,  68  lb.  29;  Comstock  v. 
State,  14  Neb.  205.  207. 

"Code,  art.  27,  sec.  232. 

'Code,  art.  27,  sec.  234;  onte.  <!  11;  Kearney  c.  State,  48  Md.  16; 
Hodges  (•  State,  55  lb.  127. 

A  receiver  from  a  receiver  is  not  indictable  under  this  statute. 
Bishop  Stat.  Cr.  ^  1140. 


174  CRIMINAL    LAW. 

§  JyS. — Religious  Meetings. — Under  this  title,  perialties 
are  provided  in  the  case  of  persons  disposing  of  liquors  or 
other  articles  of  traffic  within  two  miles  of  any  canij) -meet- 
ing- or  other  pla(;e  of  religious  worship  and  of  persons  inter- 
rupting or  disturbing  any  religious  congregation,  societj" 
or  meeting,  or  person  attending  the  same,  it  being  expressly 
provided,  that  nothing  contained  in  this  legislation  should 
prevent  the  courts  of  record  from  exercising  their  com- 
mon-law jurisdiction  in  all  cases  for  disturbing  pu])lic 
worship.' 

§  190. — Rivers. — Under  this  title  statutory  provisions 
obtain  making  it  penal  to  cast  ballast  and  other  matter  into 
certain  waters  in  this  State,  to  obstruct  streams,  to  remove 
soil  from  the  bed  of  rivers  and  the  like.^ 

§  200. — Robbery. — Eobbery  is  larceny  committed  by 
violence  from  the  person  of  one  put  in  fear.^  From  the 
person  does  not  necessarily  mean  from  actual  contact  with 
the  body,  but,  if  the  taking  is  from  under  the  personal  pro- 
tection or  control  of  another,  this  is  sufficient.*  Force  means 
either  actual  violence  or  overcoming  resistance  by  exciting 
a  reasonable  apprehension  of  danger.  If  actual  force  be 
used,  the  person  whose  goods  are  taken  is  said  legally  to 
be  put  in  fear,  actual  fear  in  such  case  not  being  essential.'^ 

Threats  of  prosecution  do  not  legally  constitute  a  [)utting 
in  fear.  Some  cases  have  held  that  to  extort  money  under 
a  threat  of  charging  a  person  with  an  unnatural  crime  is 
robbery,*^  but  this  ruling  is  not  in  accord  with  sound  prin- 
ciple." 

'  Code,  art.  27,  sees.  235-239. 

As  to  the  common-law  offense,  see  1  Bishop  Cr.  L.  'i  542;  5  En- 
cyclop.  Law,  tit.  ■*  Disturbing  Meetings." 

2  Code,  art.  27,  sees.  240-  244. 

Various  provisions  in  relation  to  "Fish  and  Fisheries"  are  also 
to  be  found  in  the  Code  of  ^  Public  General  Laws,"  article  39.  In  an 
indictment  under  such  a  provision,  prohibiting  fishing  with  gill 
nets  in  the  Potomac,  it  was  held,  that  the  indictment  must  aver  the 
assent  of  the  State  of  Virginia  to  the  law,  such  assent  being  a  con- 
dition of  its  becoming  operative.     State  v-  Hoofman,  9  Md.  2^. 

3  2  Bishop  Cr.  L.  I  1156. 
n  Hale  P.  C.  5.33. 

"2  Bishop  Cr.  L.  \  1174:  1  Wharton  Cr.  L..  8ed.,  I  850. 
« 1  Wharton  Cr.  L.,  8  ed.,  'i  852. 
'2  Bishop  Cr.  L..  '0.  1172,  1173. 


SPECIFIC   OFFENSES,   CONTINUED.  175 

Every  person  convicted  of  the  crime  of  robbery,  or  as  ac- 
cessory thereto  before  th(^  fact,  shall  restoie  the  thinjif 
robbed  or  taken  to  the  owner,  or  shall  pay  him  the  full 
value  tliereof,  and  be  sentenced  to  the  Penitentiary  for  not 
less  tlian  three  nor  more  than  ten  years.' 

§  201.  —  Rogues  and  Vagabonds. —  If  any  jterson  shall 
be  apprehended  having-  ui)<)n  him  any  pick-lock,  key,  crow, 
jack,  bit  or  other  implement,  at  ])laces  and  under  circum- 
stances fiom  which  an  intent  may  l>e  presumed  leloniously 
to  break  and  enter  into  any  «lwelling  house,  warcdiouse,  store- 
house, stable  or  outhouse,  or  shall  have  upon  him  any  pistol, 
hanger,  cutlass,  bludgeon  or  other  offensive  weapon,  also 
at  i)laces  and  under  circumstances  fiom  which  may  be  i)re- 
sumed  an  intent  feloniously  to  assault  any  ])erson,  or  shall 
be  found  in  or  ujton  any  dwelling  liouse,  warehouse,  store- 
house, stalde  or  outhouse,  or  in  any  enclosed  yard  or  garden 
or  area  belonging  to  any  house,  with  an  intent  to  steal  any 
goods  or  chattels,  every  such  i)erson  shall  be  deemed  a 
rogue  and  a  vagabond,  and,  on  being  convicted  thereof, 
shall  besentence<l  to  the  Penitentiary  for  not  less  than  one 
month  nor  moie  than  two  years,  or  to  imprisonment  in  jail, 
at  the  discretion  of  the  court,  for  a  like  term.- 

§  LM)2. — Sabbath-Breaking. — Doing  work  or  bodily  labor, 
or  commanding  or  wittingly  or  willingly  suffering  one's 
children  or  servants  to  do  any  manner  of  work  or  lalxu-  on 
the  Lord's  (hiy,  commonly  called  Sunday,  works  of  neces- 
sity and  charity  always  excepted,  or  suft'ering  or  ])ermitting 
any  children  or  servants  to  |)rofane  the  Lord's  day  by  gam- 
ing, tishing,  fowling,  hunting  or  unlawful  pastime  or  rec- 
reation, are  prohibited,  and  the  offender,  upon  conviction 
before  a  justice  of  the  peace,  forfeits  five  dollars,  to  he  ap- 
[died  to  the  use  of  the  county.^  The  selling,  disposing  of, 
bartering,  or,  in  the  case  ot  dealeis,  giving  away  on  the 
Sabbath  day.  commonly  called  Sunday,  of  tobacco,  cigars, 
candy,  soda  or  mineral  waters,  s|»irituous  or  fermented 
liquors,  cordials,  lager  beer,  wine,  cider  or  any  other  goods, 
wares  or  merchandise  whatsoever  are  also  prohibited,  this 

'Code,  art.  27,  sec.  24:'). 
Mb.,  sec  246. 
Mb.,  sec.  247. 


170  CRIMINAL   LATV. 

legislation  not  applying  to  milk  or  ice  dealers  in  supplying 
tlieir  custouiers  or  to  apothecaries  when  putting  up  bona 
fide  prescriptions.^  In  the  City  of  Baltimore,  no  vehicle  of 
any  desciiption  is  permitted  to  carry  ice  upon  the  streets  or 
highways,  for  the  purpose  of  selling  the  same,  on  the  Sab- 
bath day,  commouly  called  Sunday,  and,  it  is  also  provided, 
that,  if  any  i)erson  or  corporation  be  found  guilty  of  causing 
or  in  any  way  contributing  to  the  violation  of  this  provision, 
he  shall  be  subjected  to  a  line  of  not  more  than  fifty 
dollars,  in  tlie  discretion  of  the  court.-  The  keeping  open 
or  using  any  dancing  saloon,  opera  house,  ten-pin  alley, 
barber  saloon  or  ball  alley  on  the  Sabbath  day,  commonly 
called  Sunday,  is  also  made  penal. ^  Another  provision 
makes  it  penal  to  take  or  catch  oysters  on  Sunday.* 

The  phrase  "gaming  on  Sunday"  has  been  held  to  be 
synonymous  Avith  bettinf/  on  games.''  Work  and  labor  on 
Sunday  is  "Sabbath-breaking,"  but  selling  liquor  or  mer- 
chandise is  not;  hence,  a  jn-osecution  for  the  latter  offense 
need  not  be  instituted  within  one  mouth,  as  provided  by 
article  57,  section  11,  of  the  Code  of  Public  General  Laws.* 
The  prohibition  of  the  sale  of  liquors  on  Sunday  has  no  ap- 
plication to  the  case  of  social  clubs,  where  liquors  are  pro- 
cured, in  good  faith,  for  the  use  of  the  members  and 
furnished  to  them,  at  all  times,  on  Sundays  as  well  as  other 
days,  in  the  customary  manner  of  such  clubs.'  The  carry- 
ing forward  of  cattle  on  Sunday  by  a  common  carrier  is 
held  to  be  a  work  of  necessity.* 

§  203. — Sodomy. — Sodomy  is  a  carnal  copulation,  by 
human  beings,  with  each  other  against  nature,  or  with  a 
beast.**    The  grade  of  the  offense  in  this  State  is  felony." 


»Code,  art.  27.  sec.  248. 
^^Code,  P.  L.  L.,  art.  4,  sees.  774,  77."^. 
='Code,  art.  27,  sec.  249. 
••Code,  art.  72,  sec.  22. 
*  State  V.  Fearson,  2  Md.  310. 

« State  v.  Popp,  45  Md.  432;  Seim  v.  State,  55  lb.  566. 
'Seim  V.  State,  supra.     Cf.  Chesapeake  Chib  v.  State,  63  Md.  446. 
«P.  W.  &  B.  R.  R.  v.  Lehman,  56  Md.  209. 
As  to  works  of  necpssity  in  general,  see  15  Cent.  L.  J.  145. 
3  2  Bishop  Cr.  L.  ni91. 
'0  Davis  r.  State,  3  H.  &  J.  154. 


SPECIFIC    OFFENSES,    CONTINUED.  177 

Til*'  iniiiisliiiiciit  is  iniprisoniiiciit   in   the   IN'iiitcnriaiy  lor 
uot  less  lliiiii  one  y(>jir  nor  more  tiian  ten  years.' 

§  L»()4. — Telegraphs. — Any  person  who  shall  nnlawfiilly 
and  intentionally  injure,  molest  or  destrov  any  of  the  lines, 
posts,  i)iers  or  al)ntments,  or  tiit;  materials  or  property 
conneeted  with  the  workinjjf  ot  any  tele<;raph  lines,  shall, 
on  conviction  thereof,  be  deemed  guilty  of  a  misdemeanor 
and  be  punished  by  a  line  not  exceeding  live  hundi(,'d 
dollars,  or  bv  imprisonment  in  the  county  or  city  jail  not 
exceeding"  one  year,  or  both,  at  the  <liscretion  of  the  court 
before  whi(di  the  conviction  sliall  be  had.- 

Any  i)erson  connected  with  any  telegraph  corporation  in 
tliis  State,  either  as  clerk,  operator,  messenger,  or  in  any 
other  ca[t;u'ity,  who  shall  wilfully  divulge  the  contents  or 
the  nature  of  the  contents  of  any  private  communication 
entrusted  to  him  for  transmissiou  or  delivery,  or  who  shall 
wilfully  refuse  or  neglect  to  transmit  or  deliver  the  same, 
shall,  on  conviction  before  any  court,  be  adjudged  guilty  of 
a  misdemeaiu)r  and  shall  suffer  imprisonment  in  the  jail  in 
the  county  or  city  where  such  conviction  shall  be  had  for  a 
term  of  not  more  than  three  months,  or  shall  be  lined  not 
exceeding"  live  hundred  dollars,  in  the  discretion  of  the 
court.' 

§  205. — Theatrical  Exhibitions. — It  shall  not  be  lawful 
for  any  [»ro]uietor,  lessee  or  manager  of  any  theater, 
museum  or  other  place  of  amusement  to  emi)loy  women  or 
girls  as  waiters,  or  to  permit  them  to  act  in  such  theateror 
place  of  amusement,  or  among  the  audience  or  frequenters 
of  such  theater  or  i)lace  of  amusement  as  waiters,  or  for  the 
purpose  or  under  the  pretense  of  selling,  serving,  receiving 
orders  or  pay  for  spirituous  or  malt  liquors,  wines,  lager 
beer  or  any  other  refreshments  or  merchandise.^ 

Any  person  violating  the  i)rovisions  of  the  preceding 
section  shall  be  deemed  guilty  of  a  misdemeanor,  and,  on 
conviction  thereof  in  the  Criminal  Court  of  Ualtimore  or 
the  Circuit  Court  for  Baltimore  County,  shall  be  sentenced 

1  Code,  art.  27,  sec.  250. 
-lb.,  sec.  251. 
3  lb.,  sec.  252. 
nb.,  sec.  253. 

11' 


178  CRIMINAL   LAW. 

to  pay  a  fine  of  not  less  than  one  hunrtrecl  nor  more  tban 
one  thousand  dollars,  or  to  imprisonment  in  jail  for  not  less 
than  one  month  nor  more  than  six  montlis,  or  to  botli  fine 
and  imprisonment,  at  the  discretion  of  the  court,  and  to 
forfeiture  of  license,  one-half  the  fine  to  be  paid  to  the 
informer  and  the  other  half  to  the  State. ^ 

§  200. — Thieves  and  Pickpockets. — A  common  thief,  or 
pickpocket,  is  one  who  is  habitually  and  by  practice  a  thief 
or  i>ickpocket.  The  offense  is  purely  statutory  and  the 
method  of  i)ractice  and  procedure  are  regulated  by  the 
statute, =  which  must  be  strictly  construed.^  The  proof 
must  establish  that  the  accused  was  a  thief  or  pickpocket 
within  one  year  from  the  time  of  the  institution  of  the 
prosecution  and  must  be  confined  to  acts  of  stealing  and 
thieving.* 

§  207.— Toy  Pistols. — It  shall  be  unlawful  for  any  person 
within  this  State  to  manufacture,  or  to  sell,  barter  or  give 
away  the  cartridge  toy  pistol  to  any  one  whomsoever.  Any 
person  violating  this  section  shall,  on  conviction  thereof, 
pay  a  fine  of  not  less  than  fifty  nor  more  than  two  hundred 
dollars,  together  with  the  costs  of  prosecution,  and,  upon 
failure  to  pay  said  fine  and  costs,  shall  be  committed  to 
jail  and  confined  therein  until  such  fine  and  costs  are  paid, 
or  for  the  period  of  sixty  <lays,  whichever  shall  first  occur.^ 

§  208. — Traction  Engines. — Traction  engines,  when  pro- 
pelled by  steam  over  any  public  road,  must  be  accompanied 
by  at  least  two  men,  whose  duty  it  is  to  prevent  alarm  to 
horses  and  assist  persons  having  them  in  charge  and  one 
of  whom  must  precede  the  engine  at  least  three  hundred 

yards.  ^ 

§  209.— Water  Supply— Pollution  of  Sources  Of.— If 
any  person  shall  put  or  cause  to  be  placed  any  dead  animal, 


'  Code,  art.  27,  sec.  254. 

Quaere.  Whether  this  statute  must  not  be  construed  to  apply 
only  to  persons  having  licenses,  and  whether  the  indictment  must 
not  aver  the  license?     See  Bode  r.  State,  7  G.  326. 

''Code,  art.  27,  sees.  255-257. 

3  World  V.  State.  50  Md.  49. 

"  lb. 

*  Code,  art.  27,  sec.  28. 

«Ib.,  sees.  259-263. 


SPECIFIC!   OFFENSES,    CONTINUED.  179 

or  part  of  tlie  carcass  of  any  dead  animal,  or  any  decaj'ed 
or  filthy  animal  or  vejictable  matter  into  any  stream,  or 
the  tributary  of  any  stream,  well,  spring,  reservoir,  pond 
or  other  source  from  which  water  or  ice  is  drawn,  taken  or 
used  for  drinking  or  domestic  purposes,  or  shall  knowingly 
suffer  any  sewage,  washings  or  other  offensive  matters  from 
any  privy,  cess-pool,  factory,  trades'  establishment,  slaugh- 
ter-house, tannery  or  other  place  over  which  he  shall 
have  control  to  flow  therein  or  into  any  drain  or  pipe  com- 
municating therewith,  whereby  the  water  sui)i>ly  of  any 
city,  town,  village,  community  or  household  is  fouled  or 
rendered  unfit  for  drinking  and  domestic  i)urposes,  he 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  in  a  court  of  comj)etent  jurisdiction,  be  fined  not 
more  than  two  hundred  dollars  for  every  such  offense,  and, 
after  reasonable  notice,  not  exceeding  fifteen  days,  from 
the  State  Board  of  Health  or  any  local  sanitary  authority, 
to  di.scontinue  the  act  whereby  such  water  supply  is  fouled, 
a  lurther  sum  of  not  more  than  fifty  dollars  for  every  day 
during  which  the  offense  is  continued/ 


•  Code.  art.  27,  sec  277. 


I  N  OEX. 


PAGE. 

ABATEMENT. 

plea  in 89 

ABDUCTION. 

defined 135 

what  constitutes , 135 

evidence 135 

ABETTING. 

what,  in  felonies 6 

ABORTION. 

what  constitutes 136 

indictment 136-137 

evidence 137 

"  ABOUT  HIS  PERSON." 

meaning  in  statute 140 

'^  ABUSE." 

meaning  in  statute 173 

ACCESSORY. 

before  the  fact,  defined , 6 

guilt  depends  upon  that  of  principal 6 

after  the  fact,  defined 6 

principal  must  be  convicted  first 15 

but  accessory  may  sometimes  be  held  guilty  of  substan- 
tive crime G 

wife  can  not  be  made  to  husband's  felony lo 

ACCOMPLICES. 

testimony  of 102-103 

ADMISSIONS. 

defined 103 

admissibility  in  evidence 103 

ADULTERY. 

what  constitutes 137-13S 

penalty 138 

AGE. 

full,  what 10 

burden  of  proof 11 

ignorance  of  no  defense  upon  charge  of  abduction 135 

how  established. 160 


182  CRIMINAL   LAW. 

PAGE. 

AIDI}fG. 

what,  in  felonies 6 

ALMANACS. 

admissible  in  evidence 107 

AMBASSADORS. 

privileged  from  arrest 45-46 

AMENDMENT. 

of   indictment 80-85 

ANIMALS. 

cruelty  to  148 

APPRENTICES. 

negro,  constitutionality  of  statutes 37 

APPEAL. 

to  be  prosecuted  without  delay 133 

upon  prosecutions  for  fines  or  penalties 131 

from  rulings  at  the  trial 131-133 

APPEAL   OF  FELONY. 

obsolete 53 

ARRAIGNMENT. 

form   of 87-88 

procedure 88 

ARREST. 

who  may  make 42-43 

causes  and  manner  of 43-44 

pursuit  of  offenders 44-45 

time  of 45 

exemptions  from 45-46 

when  may  be  made  without  warrant 46 

when  must  be  upon  warrant 46-47 

ARREST   OF   JUDGMENT. 

when  granted 116-117 

ARSON. 

defined 138 

indictment • 139 

ASSAULT. 

defined  139 

what  constitutes 139 

upon  wife 139 

at  night,  in  Baltimore  City 140 

with  specific  intent 139-140 

with  intent  to  rape,  by  boy  under  fourteen  years 11 

indictment 141 

evidence 140-141 

compromising  charge 8 

sentence 123 


INDEX.  183 

PAGE. 

ATTEMFr. 

defined 5 

to  poisou  171-172 

AUTREFOIS  ACQUIT. 

pleaof 89 

AUTREFOIS  ATTAINT. 

plea  of 89 

AUTREFOIS  CONVICT. 

plea  of 89 

BAIL. 

defined 48 

ruauiier  of  takiug  48 

iu  what  cases  allowed 49-51 

may  be  taken  upon  liabeas  corpus 50 

how  taken  in  courts.  51 

arrest  after  forfeiture 51 

surreudet'  by  surety  52 

BAIL-BOND. 

wlien  may  be  taken  50 

BASTARDY. 

proceedings  classed  as  criminal 1-2 

procedure 141-3 

BATTERY. 

defined 139 

BEGGARS. 

procedure  in  Baltimore  City 62 

BEVERAGES. 

statutes  for  protection  of  bottlers  and  dealers 164 

BIGAMY. 

doctrine  in  relation  to  143-4 

BLASPHEMY. 

punishable  by  statute 144 

BOUNDARIES. 

statutory  offenses  iu  relation  to.  144 

BREAKING. 

into  dwellings  and  the  like 145-6 

of  doors,  to  make  arrests 44-45 

BRIBERY. 

of  voters 144 

of  public  ofl[icers 144 

BURGLARY. 

defined 144 

what  constitutes 144-145 


184  CRIMINAL   LA.W. 

PAGE. 

BURNING. 

iu  cases  of  arson,  what  constitutes   138 

statutory  offenses  enumerated 138 

CARNAL  KNOWLEDGE. 

of  females  under  ten  years 172-173 

"CARRY" 

meaning  in  statute 146 

CARS. 

-heating  of 15o-156 

CERTIORARI. 

to  examine  proceedings  of  justice  of  the  peace 62 

CHANGE  OF  VENUE. 

nature  of  power 28 

CHARGE.    ■ 

to  grand  jury 55-56 

CHILD,  CHILDREN. 

competency  as  witnesses 101-102 

unlawful  employment 155 

carnal  abuse  of  female  under  ten  years 173 

kidnapping 156 

CHILDREN'S  SOCIETIES. 

powers  of  ofHcers 42-43 

CLERGY. 

.  benefit  of ....     118 

COMMITMENTS. 

to  be  returned  to  Criminal  Court 53 

to  be  under  seal 126 

how  far  may  be  assailed 126 

COMMON  THIEVES. 

statutory  provisions 178 

COMPOUNDING. 

defined :..'....... ■■......„,,, 7-8 

COMPROMISE 

of  assaults  and  other  offenses 8 

'^CONCEALED." 

meaning  iu  statute 146 

CONCEALED  WEAPONS. 

discussion  of  offense 146-147 

CONFESSION. 

.  defined • 103 

rule*as  to  admissibility , 103-105 

CONFRONTING. 

with  witnesses,  meaning 26 


INDEX.  IHH 

PAGE. 

CONSF^RVATORS  OF  THE  PEACE. 

who  are 42-43 

CONSPIRACY. 

discussion  of  offense ; 147-148 

constable:^. 

duties  in  relation  to  arrest 42 

before  whom  to  being  prisoner. ..     47 

CONSTITUTION. 

general  rule  of  construction 23 

CONVICTS. 

fugitive,  procedure 153 

importing,  punishable 156 

CORPORATIONS. 

extent  of  criminal  liability 10 

COSTS. 

when  accused  not  charged  with 125-126 

imprisonment  for  hon-payment  of 29 

COUNTERFEITING.     ' 

discussion  of  offense 148 

COVERTURE. 

effect  upon  criminal  responsibility 11-13 

CRIME,  CRIMES. 

defined .'. 1 

classification 3-4 

infamous,  defined 4-5 

CRIMINATION. 

of  self,  meaning....^. 26-27 

CRIMINAL  LAW. 

defined 1 

CRIMINAL  PROCEEDINGS. 

what  classed  as 1-2 

CRIMINAL  PROSECUTIONS. 

constitutional  provisions  in  relation  to 24 

CRUEL  PUNISHMENT. 

meaning  of  term 31-32 

CRUELTY. 

to  animals 14s 

DEBT. 

actions  to  recover  penalties  classed  as  criminal 2 

imprisonment  for '. 2;^-29 

DECLARATIONS. 

admissibilit5-  of ...103-106.167 


18G  CRIMINAL   LAW. 

PAGE. 

DEFAULTERS. 

public  officers  punishable 149 

DELEGATION. 

of  legislative  powers 33 

DEMURRERS. 

practice  in  relation  to 88-89 

DESTROYING  PROPERTY. 

offense  under  statues 149 

DISCHARGE. 

when  prisoner  entitled  to 47 

DISORDERLY  CONDUCT. 

procedure  in  cases  of 57-58 

punishment 149-150 

DISORDERLY  PERSONS. 

procedure  in  Baltimore  City 63 

DISTURBANCE. 

of  public  peace 149 

DOORS. 

breaking  open 44-45 

"DRUNK.'- 

definition 150 

DRUNKENNESS. 

how  affects  responsibility 21-22 

procedure  for  statutory  offense 57-58 

punishment 149-150 

DUEL,  DUELING. 

definition 150 

discussion  of  offense 150 

DWELLING-HOUSE. 

definition 145 

DYING  DECLARATIONS. 

doctrine  in  relation  to  106 

ELECTIONS. 

offenses  in  connection  with 151 

EMBEZZLEMENT. 

di-scussion  of  offense  151 

EMBRACERY. 

of  jurors 144 

EMPLOYEES. 

hours  of  work 155 

seats  for  female 155 

"EMPTY." 

meaning  in  statute 138-189 


INDEX.  1.S7 

PAOE. 

ENGINES. 

See  Traction  Engines. 

*' ENTICE." 

definition 13G 

ERROR. 

See  Writ  of  Error. 

ESCAPE. 

of  prisoner,  retaking  45 

from  Penitentiary 152 

EVIDENCE. 

compelling  accused  to  give,  doctrine 26-27 

relevancy 107-109 

surplusage 109 

allegata  et  probata 109 

suflSciency 110-111 

EXAMINATION. 

preliminary,  how  conducted 47 

may  be  waived 48 

EXCEPTIONS. 

when  and  how  taken 132-133 

EXPERTS. 

testimony  of 106-107 

EX  POST  FACTO  LAWS. 

defined 37 

FALSE  PRETENSES. 

discussion  of  offense 153 

indictment 73 

FELONY. 

definition 4 

FEMALE  EMPLOYEES. 

seats  to  be  provided  for 155 

FEMALE  SITTERS. 

prohibited 152 

FEMALE  WAITERS. 

prohibited 152,177-178 

FEME  COVERT. 

criminal  liability 11-13 

FINES. 

mode  of  recovering 124-125 

to  whom  payable 125 

discharge  of  persons  unable  to  pay 125 

remission  of 129 

FISH  AND  FISHERIES. 

statutory  provisions 174 


188  CRIMINAL   LAW. 

PAGE. 

FISHERY. 

common  right  of 35 

FORCIBLE  ENTRY  AND  DETAINER. 

proceedings  classed  as  criminal 2 

FORGERY. 

discussion  of   offense 148 

indictment 73 

FORNICATION. 

with  negroes 168 

FRAUD. 

acts  made  penal  under  this  title 153 

FUGITIVE  CONVICTS. 

procedure  in  relation  to 153 

FUNERALS. 

collection  of  tolls  from 153 

GAMING. 

certain  acts  prohibited 153-154 

GOVERNOR. 

powers  to  grant  pardons  and  reprieves 128 

may  commute  or  change  sentence  of  death 128 

may  remit  fines  and  recognizances 129 

may  grant  7ioUe  prosefpii 128 

duties  where  sentence  of  death  pronounced 128 

GRAND   JURY. 

inquest  by 53 

how  selected 54 

how  sworn  and  charged 54-56 

irregularities  in  constitution... 56 

GRANTS. 

to  corporations,  how  construed 39-40 

GRAVEYARD  DESECRATION. 

penalties 154 

GUILTY. 

plea  of 88 

GUNNING. 

penalty  for  unlawful 154 

HABEAS   CORPUS. 

bail  may  be  taken  upon 50 

in  case  of  minors 67,  68 

controverting  truth  of  return 126 

HEALTH. 

of  community,  State  may  regulate 32 

provisions  for  protection  of 154-155 


INDEX.  !><!> 

PAGE. 

HEARING. 

prel i 111 iuary,  procedure 40-47 

HOMICIDE. 

defined 1C3 

verdict  in  cases  of 112-113 

''HOUSE/' 

definition 138 

HOUSE.  OF  CORRECTION. 

sentence  to 122-123 

HUE  AND  CRY. 

defined 45 

manner  of   raising 45 

IGNORANCE. 

of  law 14 

of   fact 14-18 

INCEST. 

discussion  of  ofifense 156 

"INDECENCY." 

legal  test  of 169 

INDICTMENT. 

prosecution  by 72 

formal  allegations  72-74 

certainty '''4 

names  of  third  persons 75 

allegation  of  circumstance  constituting  illegality 75-76 

allegation  of  time  and  place 76-77 

matters  unknown 77 

technical  words 77-78 

surplusage 78 

upon  statutes 7S-79 

conclusion 79 

joinder  of  counts 79-80 

allegation  of  ownership  or  possession 80 

amendment 80-S5 

mode  of  returning  into  court 83 

jury  may  be  sworn  upon  one  count 9^ 

INFAMOUS  CRIMES. 

defined 4-5 

INFANT. 

defined 10 

criminal  capacity..  10-11 

sentence 120-122 

INFORMATION. 

prosecution  by  obsolete 53 


VJO  CRIMINAL   LAW. 

PAGE. 

INNOCENCE. 

presumption  of 110-111 

INSANITY. 

defined 19 

effect  upon  responsibility.. 19 

moral,  or  lesion  of  will 20,  21 

procedure  when  alleged 114-115 

INSPECTION. 

of  tobacco,  constitutionality  of   statutes 34-35 

INSTRUCTIONS. 

to  jury,  duty  of  court 98-99 

INTENT. 

evil,  doctrine  of 18 

INTERNAL  POLICE. 

State  may  regulate 32-33 

INTOXICATION. 

how  far  affects  responsibility 21-22 

JUDGES. 

of  superior  courts  are  conservators  of  the  peace.     46 

may  issue  warrants  of  arrests 46 

may  conduct  preliminary  hearing 46 

JUDGMENT. 

how  to  be  rendered  117-118 

statutory  provisions 118  -120 

courts  retain  control  of  during  term 118 

arrest  of 116-117 

reversal  and  its  consequences 118,138-134 

JURISDICTION. 

criminal,  in  what  courts  vested  87 

police  justices  in  Baltimore  City 58-59 

justices  of  the  peace  in  counties 59-61 

goods  stolen  in  another  state 87 

conspiracies  conducted  indifferent  states 87 

where  act  done  in  one  county  and  death  ensues  in  another     86 

where  act  done  on  Chesapeake  Bay 86 

where  act  committed  on  steamboat  or  railroad  train 86-87 

]3lea  to 89 

JURORS. 

privileged  from  arrest 46 

how  drawn 54 

intimidating,  impeding  and  the  like 144 


INDEX.  11)1 

PAGE. 

JURY. 

right  to  trial  by.  how  claimed  in  certain  cases 58-61 

uiauuer  <jf  clrawhig 94-9"» 

mistake  in  name  of  juror  in  selection  of 98 

right  of  challenge U.")-97 

oath  of 97-98 

may  be  sworn  upon  only  one  count 98 

judges  of  law 29-31 

reuditiou  of  verdict  1  n>-114 

maybe  polled 113-114 

discharge  of 98 

special  panel  may  be  selected  to  try  removed  case ...     91 

JUSTICES  OF  THE  PEACE. 

police  jurisdiction  in  Baltimore  City 47,  58-59 

summary  jurisdiction  in  counties 59-61 

issuing  of  warrants ' 46 

powers  as  to  bail 49-50 

preliminary  hearing 46 

procedure  upon  charges  of  drunkenness  and  disorderly 

conduct 57-58 

jurisdiction  in  relation  to  "tramps.'' 61-63 

certiorari  may  be  directed  to 62 

JUVENILE  INSTITUTIONS. 

special  provisions 67 

regularity  of  commitments  to  immaterial 68 

powers  of  otticers  of 42-43,  164-165 

KIDNAPPING. 

penalty 156 

LARCENY. 

defined 156 

what  constitutes 157 

goods  taken  in  another  state 158 

indictment 158 

punishment 157-158 

sentence 122-123,  159 

LETTERS. 

wrongfully  opening 159 

LIBEL. 

defined 159 

what  constitutes 159 

truth  may  be  given  in  evidence 159-160 

LICENSE. 

to  sell  liquor,  may  be  modified  or  annulled  by  Legislature  32-33 
statutes,  penalties ICO 


192  CRIMINAL    LAW. 

PAGE. 

LIMITATIONS,  STATUTE  OF. 

bearing  11  pou  evidence 109-110 

LIQUOR  SELLING. 

ma  J-  be  prohibited 32-33 

to  minor 14-18,  160 

on  election  days 151 

evidence  to  prove  real  nature  of  transaction  where  evasion 

attempted 160 

scienter 15 

LOCAL  OPTION  LAWS. 

•constitutionality 33-34 

LOTTERIES. 

discussion  of  offense 161 

MAIMING. 

definition 162 

indictment 162 

punishment 163 

MALFEASANCE  IN  OFFICE. 

discussion  of  offense 162-163 

MALICE  AFORETHOUGHT. 

definition... 164 

MANSLAUGHTER. 

definition 164 

punishment 164 

MARRYING  UNLAWFULLY. 

statutory  prohibitions 164 

MARYLAND   HOUSE   OF  CORRECTION. 

See  House  of  Correction. 
MAYOR  OF  BALTIMORE. 

vested  with  police  powers  of  justice  of  the  peace,  46 

MAYHEM. 

See  Maiming. 
MENTAL  INCAPACITY. 

discussed 18-20 

MERGER. 

at  common  law «-9 

statutory  provision  9 

MINERAL  WATERS. 

statutes  for  protection  of  bottlers  and  dealers 164 

MINORS. 

meaning  of  term  10 

right  of  State  to  protect  welfare 63-64 

care  and  protection  of 164-5 

proceedings  in  relation  to 63-68 

commitment  of  mendicant  and  vagrant 64-66 


INDEX.  lO.i 

PAGE. 

Ml'i^ORii— Continued. 

coinmitmeut  of  destitute  and  suffering G6-67 

procedure  wlien  brouglit  up  by //o^er^w  t'o?7i'/.s (J8 

no  trial  necessary  to  authorize  commitment  for  care 63 

but.  where  proceeding^  is  criminal,  same  formalities  ne- 
cessary as  in  case  of  adults 04 

sale  of  liquor  to 100 

selling  or  giving  weapons  to  lO-"' 

giving  cigars,  cigarettes  or  tobacco  to l")") 

l)ermitting  to  play  at  games 165 

pawnbrokers  receiving  deposits  from 16 ") 

may  testify  as  to  their  own  age 160 

sentence  of  convict 120-122 

MINISTERS. 

foreign,  privileged  from  arrest 45-46 

MISDEMEANOR. 

defined 4 

MISPRISION. 

defined '"^ 

MISTRIAL. 

doctrine  discussed 110 

MORAL  INSANITY. 

relation  to  responsibility 20-21 

MORALS. 

of  community.  State  may  regulate 32 

MUNICIPAL  CORPORATIONS. 

police  powers 3 

MURDEbt. 

defined   104,  106 

classes  .of 166 

"wilful,  deliberate  and  premeditated,''  meaning 168 

evidence 167 

verdict 100 

punishment 166-167 

NEGRO  APPRENTICES. 

constitutionality  of  statutes 37 

NEGROES. 

fornication  with 168 

NOLLE  PROSEQUI. 

defined 127 

power  of  State's  attorney 127 

Governor  may  grant 128 

effect  of 128 


i;; 


194:  CRIMINAL    LAW. 

PAGE. 

NUISANCE. 

defined 168 

what  constitutes 168 

prescription  can  not  be  set  up  as  defense 168 

evidence..... , 2 

judgment  to  abate 169 

OATH. 

of  petit  jurors 97-98 

of  grand  jurors 55 

OBSCENE  PUBLICATIONS. 

statutory  prohibition 169 

OBSTRUCTION  OF  RAILROADS. 

statutory  provision 172 

OFFICERS. 

See  Peace  Officers. 

OPIUM  JOINTS. 

statutory  provision 169-170 

OYSTERS. 

statutorj' provisions 170 

PARDON. 

Governor  may  grant 128 

violation  of  condition  129 

PARTICIPATION  IN  CRIME. 

degrees  of 5-6 

PAWNBROKERS. 

-    not  to  receive  deposits  from  minors  165 

PEACE  OFFICERS. 

who  are 42-43 

when  may  break  doors 44-45 

PEACE  WARRANTS. 

nature  and  procedure 70-71 

PENITENTIARY. 

escaping  from 152 

PERJURY. 

definition 170 

what  constitutes 170 

indictment 171 

punishment 171 

subornation  of 170-171 

PICKPOCKETS. 

statutory  provisions 178 


INDEX.  195 

PAGE. 

PLEA. 

necessary  to  enable  trial  to  proceed 8b 

of  guilty  *^^ 

not  guilty 89 

special  89 

PLEADING. 

how  to  be  conducted 88-S9 

POISON. 

attempting  to 171-172 

POLICE  COMMISSIONERS. 

of  Baltimore  City,  powers 42 

POLICEMEN. 

duty  to  arrest 42 

before  whom  to  bring  prisoner  in  Baltimore  City  47 

special,  for  corporations 42 

POLICE  POWERS. 

of  municipal  corporations 3 

POOLS. 

on  horse  races 154 

PRAYERS. 

duty  of  court  in  relation  to 98-99 

PRESENTMENT. 

definition 53-54 

trial  upon 53 

PRESUMPTION. 

of  innocence 110-111 

PRINCIPAL. 

defined 5 

in  first  degree 5-6 

in  second  degree  5-6 

PRISONERS. 

custody  of 126-127 

PROFANITY. 

punishable  by  statute 144 

PROSECUTIONS. 

criminal,  constitutional  provisions 24 

PUNISHMENT. 

for  felony 118 

cruel  or  unusual 31-82 

PURSUIT. 

of  offenders 44-45 


190  CRIMINAL    LAW. 

PAfiE. 

RAILROADS. 

obstructing 172 

RAPE. 

defined 172 

what  constitutes 172 

when  accused  under  fourteen  years 11 

punishment 173 

REASONABLE  DOUBT. 

doctrine  of 110-111 

RECEIVER,  RECEIVING. 

definition 6 

procedure 7 

punishment 173 

RECOGNIZANCE. 

is  the  mode  of  taking  bail  in  this  State 48 

requisites 48 

enforcible 48 

forfeiture 48-49 

may  be  taken  upon  Tia&eas  corpus 48 

State's  attorney  may  order  execution 51 

proceedings  after  execution 51-52 

arrest  after  forfeiture 51 

surrender  by  surety 52 

Governor  may  remit 52,  129 

return  to  Criminal  Court 53 

REMOVAL  OF  CAUSES. 

nature  of  power 28 

statutory  regulations 89-93 

RELIGIOUS  MEETINGS. 

offenses  in  relation  to 174 

REPRESENTATIVES. 

foreign,  privilege  from  arrest 45-46 

REPRIEVE. 

Governor  may  grant  128 

RESCUE. 

of  prisoner 6 

RES  GESTAE. 

doctrine  of 105-106 

RIOT. 

punishment 123 

RIVERS. 

casting  ballast  into 174 


INDEX.  107 

PAOE. 

ROBBERY. 

defined 174 

what  constitutes 174 

punishment 175 

"ROGUES  AND  VAGABONDS." 

statutory  provisions  176 

SABBATH  BREAKING. 

what  constitutes 17.5-176 

SEARCH  WARRANTS. 

definition 68 

how  granted  and  executed 69-70 

SEATS. 

for  female  employees 155 

SECOND  OFFENSE. 

proof  required. Ill 

verdict  113 

SELF-CRIMINATION. 

what  meaus 26-27 

SENATORS. 

privileged  from  arrest 45 

SENTENCE. 

requisites 117-118 

how  to  be  rendered 117-118 

statutory  provisions 118-120 

of  minors 120-122 

to  House  of  Correction , 122-123 

of  death,  powers  of  Governor 128-129 

SHERIFF. 

duty  to  arrest 42 

may  take  bail-bond 50 

SITTERS. 

female,  prohibited 152 

SODOMY. 

definition 176 

punishment 177 

STATE'S  ATTORNEY. 

power  in  relation  to  ?io?/e  prosegijj 127 

STATUTES. 

when  may  be  declared   invalid 23 

general  rule  of  construction 38-39 

repeal 40-41 


108  CRIMINAL   LAW. 

PAGE. 

STET. 

defined •   127 

effect  of 128 

SUBORNATION. 

of  perjury 170-171 

SUMMARY  PROCEEDINGS. 

defined 57 

constitutionality 24-26 

statutory  provisions 57-62 

SUNDAY. 

statutory  provisions 175-179 

SURETY  OF  THE  PEACE. 

when  demandable   70-71 

procedure 70-71 

SURPLUSAGE. 

when  treated  as 78 

"TARRING  AND  FEATHERING." 

penalty 162 

TELEGRAPHS. 

statutory  provisions 177 

THEATRICAL  EXHIBITIONS. 

employment  of  females 177-178 

THEFT-BOTE. 

defined 7 

THIEVES. 

common 178 

TIME. 

allegation  of 76-77 

proof  of 109-110 

TOBACCO  INSPECTIONS. 

constitutionality  of  statutes 34-35 

TOWN  BAILIFFS. 

duty  to  arrest '^2 

TOY  PISTOLS. 

statutory  provisions ^'° 

TRACTION  ENGINES. 

statutory  provisions 1'° 

TRADERS. 

non-resident 36-37 

TRAMPS. 

procedure  in  relation  to 61-62 

sentence ^''** 


INDEX.  1!M> 

PAGE. 

TREASON. 

discussion  of  oflfense 3-4 

TRIAL. 

when  said  to  commence 98 

upon  commitment  or  presentment 53 

before  court  witliout  jurj' 03-94 

UNUSUAL  PUNISHMENT. 

meaning 31-32 

'^VAGABONDS."" 

procedure  in  Baltimore  City 02 

''VAGRANTS." 

procedure  in  Baltimore  City 62 

VALUE. 

allegation  of 158 

VENUE. 

change  of 28,  89-93 

VERDICT. 

general  doctrine 112 

rendition  of 113-114 

polling  jury 113-114 

effect  of 115-116 

in  cases  of  homicide 112-113 

in  second-offense  cases 113 

where  defense  insanity 114-115 

VOTERS. 

bribery  of 144 

WAITERS. 

employment  of  females 152,  177-178 

WARRANT. 

to  be  under  seal 126 

when  to  be  granted 46-47 

constitutional  prohibition 47 

WATER  SUPPLY. 

pollution  of  sources  of 178-179 

WEAPONS. 

carrying  of 146-147 

WHIPPING. 

punishment  of,  constitutionality  of  statute 31-32 

WITNESSES. 

privileged  from  arrest 46 

confronting  with,  meaning 26 


200  CRIMINAL   LAW. 

PAGE. 

\V  ITN  ESSES  -  Continued . 

competeucy 100-102 

number  necessary  to  convict 102 

intimidating,  impeding  and  the  like 144 

WRIT  OF  ERROR. 

formal  dispensed  with 131 

when  lies 130 

what  brings  up  for  review — 180 

to  be  prosecuted  without  delay 133 

does  not  stay  execution...  131 


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